COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73255 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION LARRY STEWART : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 19, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-340,429 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor EDWARD M. WALSH, Assistant PATRICK LAVELLE, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JOHN RICOTTA Attorney at Law 425 Lakeside Avenue, 1st Floor Cleveland, Ohio 44113 KENNETH A. ROCCO, J.: -2- Defendant-appellant Larry Stewart appeals his convictions after a jury trial for aggravated murder, attempted murder, aggravated robbery, kidnapping, and, after trial to the court, for having a weapon while under disability, all with specifications. In his appellate brief filed by and through counsel, appellant asserts that the trial court erred both in admitting witness identification testimony and in its instructions to the jury, that his convictions are against the weight of the evidence, and that he was denied his constitutional right to the effective assistance of counsel at the mitigation phase of his trial. In his supplemental appellate brief, filed pro se, appellant additionally asserts the trial court erred in denying his motion for a mistrial, in limiting his cross-examination of the state's witnesses, in failing to give certain cautionary instructions to the jury, and in sentencing him on multiple counts. This court has reviewed appellant's assignments of error in conjunction with the record on appeal, finds that the trial court's actions were appropriate and that appellant's constitutional rights were well protected and, therefore, affirms his convictions and sentences. Appellant's convictions stem from an incident that occurred on the night of May 28, 1996. Since that day was the eighth birthday of Jewetta Roberts, daughter of Nathan Bell,1 one of the victims herein, Nathan had celebrated it with a number of family members at 1For purposes of clarity, the adults who were in the apartment on the night of the incident will be referred to in this opinion by their first names. -3- their home, an apartment in a building located at 3395 East 140th Street in Cleveland, Ohio. Nathan's family members present at the apartment by nightfall included the following: 1) his mother Jewetta; 2) his brother Tyrone, who was a quadriplegic; 3) his brother Kevin, who arrived at the apartment at approximately 9:15 p.m.; and 4) his sons Little Nate, Jason and Christopher. Also present that night were Nathan's girlfriend Latasha and his friend Mark Turner. As Nathan was not scheduled to report to his place of employment until midnight, he decided to watch a televised basketball game with Tyrone in Tyrone's bedroom. Mark was also in the room, seated on Tyrone's bed. Upon his arrival at the apartment, Kevin informed Nathan's sons Little Nate and Jason that on his way he had stopped to order a sandwich from the restaurant located next door to the apartment building. Kevin asked the boys to retrieve it for him, and they agreed. He gave them some money, then proceeded to Tyrone's room to join his brothers and Mark. Outside the apartment, Little Nate and his brother went down the few steps to the security door in the lobby of the building. Little Nate was opening the security door when he saw Curtis Mitchell approaching. Since Little Nate knew Curtis was a relative -4- of the family,2he held the security door open to let Curtis inside the building. The youngsters then continued on their errand. Curtis entered the apartment through the unlocked front door, walking past the dining room at the front and into the short hallway, where he stopped and looked into Tyrone's bedroom. Curtis greeted the men inside, then proceeded to the other bedroom in the apartment, where Jewetta was watching her two other grandchildren as they played video games on the television. Curtis did not visit often; therefore, Jewetta thought his appearance that night was unusual. Curtis spoke with Jewetta briefly. As he was doing so, Latasha stepped into the dining room to begin ironing clothes; thus, she saw Curtis standing in the hallway, 3 and he passed her on his way out of the apartment. The two youngsters were returning from their errand just as Curtis was exiting the building. Before Little Nate went into his family's apartment, he observed Curtis [p]utting paper in the [security] door in order to prevent it from latching. Little Nate then delivered the restaurant sandwich to Kevin, who took it into his mother's bedroom to eat it. By this time, Little Nate had become hungry himself, so he made a sandwich in the kitchen. Afterwards, he and Jason sat in the dining room to wait for Latasha to finish ironing clothes. 2Nathan testified at appellant's trial that Curtis was his older brother Timothy's stepson. Timothy, who lived in Akron, Ohio, was not present at the apartment on the night of the incident. 3Quotes indicate testimony of a witness at appellant's trial. -5- The three of them were surprised when the door to the apartment suddenly opened, striking Latasha as it did so. Two strange men strode into the entranceway; the men both held guns. One man, later identified as William Logan, continued down the hall, while the other, later identified as appellant, ordered Latasha and the two boys to get down. As Latasha obeyed, she watched appellant, concerned that he would fire the weapon he pointed at her. Appellant stated, Don't look, so Latasha then covered her eyes with her arm. Logan walked past the first bedroom and entered Jewetta's bedroom, where Kevin had just set down the remaining portion of his sandwich. Kevin looked up to see Logan standing in front of me with a loaded 38-caliber handgun in my face. Logan demanded money. Kevin complied by handing Logan his wallet; however, since he knew it contained no currency, he began to plead with Logan to let [his] mom out of this house. In her fear at the sudden confrontation, Jewetta fumbled for her purse, declaring she would take Logan to the ATM machine because they had no money here. Logan seemed disconcerted by this information. He ordered them to [s]hut up and motioned for them to leave the room. Kevin pushed his mother in front of him as the two were followed out the door by Logan. As Kevin passed the other bedroom, he nudged the door open with his foot in order to apprise the men inside of what was occurring. Thus, Nathan, who had been watching television from a prone position on the floor of the bedroom, -6- looked over at the doorway to see a guy with a gun to [his] brother's head. Jewetta continued to the dining room, where upon seeing appellant, she lay down on the floor with the others. Nathan leaped up and advanced toward the men. Logan turned the gun toward him, but at that moment, Kevin also turned toward Logan. The brothers grabbed at Logan's gun hand and pushed it toward the wall behind them. A struggle between the three ensued. Logan's gun fired during the fight for it; the bullet struck the rear door of the apartment. When appellant became aware of his partner's difficulty, he left the dining room to run down the hallway in a crouched position with his gun extended and pointed. Just as appellant advanced, Mark Turner came to the bedroom doorway intending to aid his friends in their struggle for Logan's gun. Appellant fired his weapon once; Mark said, Oh, then fell back onto the bedroom floor. The bullet had struck him in the back and traveled through his heart, killing him almost instantly. Appellant then fired his weapon again, striking Nathan in the leg and shattering the femur. Nathan went down. Appellant step- ped over Nathan, pointed the gun at each of the brothers, and ordered Kevin to [g]et off [his] boy [Logan]. Kevin complied. The two gunmen then fled out the rear door. By this time, Latasha and Jewetta also had escaped from the apartment. They summoned the police, who arrived within minutes. Nathan soon was transported to the hospital by emergency medical personnel. During their investigation of the incident, the police -7- took photographs of the scene and interviewed the witnesses present. Shortly after the incident had occurred, police officer Michael Belle received a telephone call from his cousin, Ernestine Bell, Jewetta's daughter. Belle's cousin informed him of what had transpired that evening. He proceeded to the apartment, spoke with Jewetta, then went to look for Curtis Mitchell. Upon finding him, Belle convinced Curtis to accompany him to the Cleveland Police Department's Homicide Unit. Curtis thereafter gave a written statement that identified Logan and appellant by their street names as his partners in perpetrating the incident. Logan was arrested within approximately two weeks; however, the police were unable to apprehend appellant. On June 27, 1996, the Cuyahoga County Grand Jury issued an indictment against appellant and Logan, charging them on seven counts as follows: two counts of aggravated murder, R.C. 2903.01(A) and (B), with firearm, mass murder and felony murder specifica- tions; one count of attempted murder, R.C. 2923.02/2903.02, with a firearm specification; two counts of aggravated robbery, R.C. 2911.01, with firearm specifications; and two counts of kidnapping, R.C. 2905.01, with firearm specifications. Appellant and Logan also each were indicted on a single count of having a weapon while under disability, R.C. 2923.13; appellant's count contained both a firearm and a violence specification. The record reflects William Logan's case proceeded separately from appellant's. -8- On September 2, 1996, appellant was arrested in Tacoma, Washington. Appellant waived extradition and was arraigned on Sep- tember 24, 1996. He entered a plea of not guilty to the charges and was assigned counsel to represent him. On October 14, 1996, Det. Moore, who was in charge of the investigationof the incident, went to the Bells' apartment with a photographic array consisting of twelve pictures.4 Asking each to choose those persons who came into the house that night, Det. Moore showed the array separately to the following people: Latasha, Jewetta, Nathan, Tyrone and Kevin. Latasha, Jewetta and Nathan all chose the photographs of Curtis, Logan and appellant from the array. Tyrone chose Curtis and Logan. Kevin also chose Curtis and Logan; his identification of appellant, however, was not immediate and, therefore, Moore did not note it. The record reflects that on April 7, 1997, after extensive discovery had been undertaken and appellant's case was called for trial, appellant informed the trial court he was dissatisfied with counsel. The trial court discussed the matter and permitted appellant's family to retain additional counsel but advised appellant that it would not permit assigned counsel simply to be dismissed; rather, they would assist retained counsel. Appellant raised no objection to this proposal. 4Moore testified the reason for the delay in approaching the witnesses with the photographic array was due to time schedules, the [other] homicides we had to investigate, court appearances; the family was *** unavailable. Various things ***. -9- Also prior to trial, the state requested a dismissal of count one of the indictment against appellant. The trial court granted the motion and consequently renumbered the counts of the indictment against appellant. Subsequently, the trial court also granted appellant's motion to try the final count of the indictment to the bench. Although appellant requested the trial court to conduct a separate voir dire hearing on identification testimony of the state's witnesses prior to the commencement of trial, the trial court refused. The trial court stated its belief that, in view of the probable length of the trial, judicial economy would be better served by conducting a voir dire prior to the testimony of each identification witness. Appellant's jury trial commenced on June 9, 1997. During its case-in-chief, the state presented the testimony of several members of the Bell family, some of the investigating police officers and forensics examiners, the assistant county coroner who had conducted Mark Turner's autopsy, and Curtis Mitchell. The state also intro- duced into evidence, inter alia, several photographs of the scene taken by the police on the night of the incident. The trial court further permitted the state to introduce evidence concerning appellant's prior convictions. Appellant presented the testimony of several witnesses and also testified in his own behalf. Appellant's defense was that of alibi: he stated he was with Nicole Garrett, the mother of two of his children, on the night of the incident. The trial court -10- thereafter admitted appellant's work records for the relevant time period into evidence. On June 13, 1997, the jury found appellant guilty on all counts with the specifications. Additionally, the trial court found appellant guilty of the remaining count of having a weapon while under disability. A mitigation hearing as to appellant's conviction for aggravated murder, R.C. 2903.01(B), followed on September 3, 1997. At the mitigation hearing, appellant's parents testified concerning appellant's upbringing. Appellant then gave an unsworn statement. Subsequently,the jury recommended a sentence of life imprisonment without parole eligibility for thirty years. On September 4, 1997, the trial court sentenced appellant to consecutive terms of incarceration as follows: three years on the firearm specifications, to be served prior to and consecutive with thirty years to life for the aggravated murder conviction; fifteen to twenty-five years for the convictions for attempted murder and each of the convictions for aggravated robbery and kidnapping; and three to five years for the conviction for having a weapon while under disability. Appellant has filed a timely appeal of his convictions. He presents four assignments of error for this court's review by and through counsel. Appellant also filed a supplemental brief pro se in which he asserts four additional assignments of error. Appellant's pro se assignments of error will be addressed together with those of his counsel where appropriate. -11- Appellant's first assignment of error presented by and through counsel and his first two pro se assignments of error5 state as follows: I. THE TRIAL COURT ERRED IN ADMITTING PATENTLY UNRELIABLE EYEWITNESS IDENTIFI- CATIONS. I. THE TRIAL COURT ABUSED IT'S (sic) DISCRE- TION IN DENYING THE APPELLANTS MOTION FOR MISTRIAL AND SUPPRESSION OF STATE WITNESS KEVIN BELL, A VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION. II. THE TRIAL COURT ERRED WHEN REFUSEING (sic) THE DEFENSE FROM USEING (sic) THE STATES (sic) CRIME SCENE PHOTOGRAPHS FOR CROSS-EXAMINATION OF IDENTIFICATION WIT- NESSES, A VIOLATION OF THE FIFTH AND FOURTEENTH AMEDMENT (sic) OF THE UNITED STATES CONSTITUTION. Appellant first argues the trial court erred in admitting the testimony of the witnesses who identified appellant as the principal offender, contending the length of time between the incident and the witnesses' viewing of the photo array rendered their testimony patently unreliable. This court disagrees. Regarding pretrial identification procedures, the Ohio Supreme Court recently has stated as follows: When a witness had 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. 5Appellant's pro se assignments of error are set forth verbatim. -12- 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. The supreme court, therefore, has stressed that the focus of a court's inquiry into the matter primarily must be upon reliabil- ity rather than merely upon the identification procedure. State v. Williams (1995), 73 Ohio St.3d 153, at 164, citing State v. Jells (1990), 53 Ohio St.3d 22, 27. Furthermore, it is defendant's burden to show the court that the identification procedures were unnecessarily suggestive and that the in-court identification was unreliable under the totality of the circumstances. State v. Sims (1984), 13 Ohio App.3d 287 at 288. Even suggestive identification procedures, however, do not preclude admission where the identifi- cation itself is determined to be reliable. State v. Davis, supra; State v. Keith (1997), 79 Ohio St.3d 514; State v. Moody (1978), 55 Ohio St.2d 64. In determining whether under the `totality of the circumstances' the identification was reliable even though the confrontation proce- dure was suggestive *** the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of atten- tion, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Neil v. -13- Biggers (1972), 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411. State v. Keith, supra, at 523. In this case, although appellant hints the identification procedure was suggestive merely because the witnesses expected the photographic array would contain suspects, this is an insuffi- cient basis upon which to base such a conclusion. State v. Saddler (Apr. 16, 1998), Cuyahoga App. No. 71747, unreported; State v. Rawls (Apr. 30, 1998), Cuyahoga App. No. 73051, unreported. Instead, a review of the photographic array in conjunction with the record fails to indicate the police method was suggestive. State v. Williams, supra; State v. Jones (July 2, 1992), Cuyahoga App. No. 60106, unreported. In any event, a review of the totality of the circumstances reveals the witnesses' identifications of appellant were reliable. State v. Waddy (1992), 63 Ohio St.3d 424 at 438. Each of the witnesses had a clear view of appellant's face for a time under good lighting conditions, most of them heard him speak to them, appellant's action toward each witness was a memorable event, and immediately after the incident, all the witnesses described appellant with significant accuracy. State v. Parker (1990), 53 Ohio St.3d 82. Although the length of time between the incident and the confrontationwas attenuated, Det. Moore testified Jewetta, Nathan and Latasha chose appellant's photograph from the array without hesitation. Moreover, each of these witnesses was very positive in his or her identification of appellant. -14- The record reveals the witnesses' identifications of appellant were neither the result of an impermissibly suggestive confronta- tion nor unreliable; therefore, the trial court did not err in denying appellant's motions to suppress the identification testimony. State v. Davis, supra; State v. Keith, supra; State v. Byarse (Sep. 4, 1997), Cuyahoga App. No. 70282, unreported; cf., State v. Nichols (1996), 116 Ohio App.3d 759. Appellant further argues the trial court erred in denying his motion for a mistrial made during Kevin Bell's testimony. The record reflects that on direct examination, as Kevin was explaining the sequence of events that occurred after he grabbed Logan's wrist, he became caught up in his narrative, declaring as follows: Q. What happened after you grabbed his wrist? A. Struggle ensued and it's so small right there at the doorway that I have him and I'm like wrastling with this guy and he got this gun and my brother is reaching over me and we fall out into the hallway. It's a very narrow hallway. My mom has a dresser in the hallway. We hit the dresser and my brother is still coming out. Q. This is Nathan now, right? A. This is Nathan. Me and Nathan are strug- gling with this guy to get him subdued. We're arguing or yelling or whatever through the course of this. Q. Where is your mother now? A. My mother - I thought my mother was outside. Q. Okay. Go ahead. -15- A. My mother was down the hallway. I didn't see my mother after I motioned her to get down the hallway. Q. So you and Nate or Nathan are struggling with this guy? A. We're struggling with this guy. We fall up against the dresser that my mom has in the hallway. That's when Mark reaches out. This guy then, that guy right there [appellant], he came - MR. TOLLIVER: Objection, Your Honor. MR. ANDRACHIK: Objection, judge. A. That guy right there came running down the hallway. MR. TOLLIVER: Objection. THE COURT: Objection overruled. A. That guy right there, sitting right there - MR. TOLLIVER: Objection. THE COURT: Overruled. A. - came running down the hallway. THE COURT: Please be seated, Mr. Tolliver. A. He was in a stooped position because he heard us fighting with this guy and heard the yelling because my brother Nate was like, You going to die now, because he had this gun to my head and we're fight- ing and when this guy came down the hall- way - MR. ANDRACHIK: Objection. A. - he came in a stooped position and he fired his first shot when Mark reached out of that bedroom. Mark didn't even get into the altercation because it was so small in that hallway. This guy, that gentleman right there, came down the -16- hallway in a stooped position and he fired. His first shot hit Mark in his back because Mark reached out. I'm look- ing at Mark while I'm fighting because we're like, Help, help, help. Q. You still have your hands on the guy, the other guy with the gun? A. Yes, I'm still fighting with this guy. Q. All right. A. Mark reached out of the bedroom. He didn't even get a chance to grab this guy and I heard him say, Oh, and I looked and he fell back into my brother's bed- room and onto the floor. Then that guy right there - MR. ANDRACHIK: Objection. A. - shot again. THE COURT: Counsel, approach the bench. A. He shot again. THE COURT: Have a seat. (Thereupon, the following discussion was held between the Court and counsel on the record at the bench out of the hearing of the jury as follows:) THE COURT: The court has intervened at this point because of the re- peated in-court identification by this witness of Larry Stewart and there had been a motion for in-camera identifi- cation voir dire, not in- camera, but for a voir dire on the identification and this witness apparently took it upon himself to bypass that proce- dure spontaneously in his ex- citement and it might be indi- cated that his testimony here is very excited and animated and demonstrative. *** -17- Thereafter, it was determined that since Kevin had not immediately chosen appellant's picture out of the October 14, 1996 photographic array, the state had not considered him to be an identification witness. Thus, his in-court identification of appellant was a surprise to both parties. The trial court thereupon permitted a voir dire of Kevin; subsequently, it ruled his identification testimony was admissible, overruled appellant's motion for a mistrial, and permitted the state to resume its direct examination of the witness. Appellant argues the trial court's denial of his motion compromised his right to a fair trial. The granting or denying of a motion for a mistrial rests within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, at 182. Since the trial court is in the best position to determine whether the situation at hand warrants such action, appellate courts will not disturb the exercise of the trial court's discretion absent a demonstration the defendant has suffered material prejudice. State v. Glover (1988), 35 Ohio St.3d 18; State v. Stout (1987), 42 Ohio App.3d 48. Moreover, unless a defendant's substantial rights are affected, a mistrial should not be ordered in a criminal case merely because some error or irregularity intervened. Id. In this case, a review of Kevin's voir dire testimony reveals his identification of appellant had sufficient indicia of reliabil- ity to render his identification admissible into evidence. State v. Davis, supra. The fact that it was admissible suggests Kevin's -18- testimony, although excited, could have neither caused appellant material prejudice nor affected appellant's substantial rights. State v. Stout, supra; see, also, State v. Jones (1996), 115 Ohio App.3d 204. Thus, this court finds no prejudicial error in this case that would demonstrate the trial court abused its discretion in denying appellant's motion for a mistrial. Id.; State v. Sage, supra. Finally, appellant argues the trial court erred when it refused to permit him to introduce into evidence certain photo- graphs taken by the police officers on the night of the incident. The photographs were taken outside and on the stairway of the apartment building and depict drugs and drug material located near, but not adjacent to, the Bells' apartment. Appellant argues the trial court's ruling in this regard deprived him of his constitu- tional right of confrontation of the witnesses against him. However, appellant's argument is unpersuasive. The trial court based its decision on both fact and law: the Bells' possession of this material was never established by the evidence. See R.C. 2925.01(L); State v. Haynes (1971), 25 Ohio St.2d 264; cf., State v. Wolery (1976), 46 Ohio St.2d 316. Moreover, since the record reflects the trial court permitted appellant to fully cross-examine the state's witnesses with regard to the presence of the items on the stairway, appellant's constitu- tional right of confrontation was preserved. -19- For the foregoing reasons, appellant's first assignment of error presented by and through counsel and his first two pro se assignments of error lack merit. They are accordingly overruled. Appellant's second assignment of error presented by and through counsel and his fourth pro se assignment of error state as follows: II. FAILURE OF THE TRIAL COURT TO GIVE A REQUESTED JURY INSTRUCTION ON VOLUNTARY MANSLAUGHTER DENIED THE APPELLANT IS (sic) RIGHT TO FAIR TRIAL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION. IV. THE TRIAL COURT FAILED TO GIVE CAUTIONARY INSTRUCTIONS ON EYE-WITNESSES TESTIMONY, WHICH AMOUNTED TO PLAIN-ERROR, A VIOLA- TION OF THE FIFTH AND FOURTEENTH AMEND- MENT OF THE UNITERD STATES CONSTITUTION. In these assignments of error, appellant argues the trial court improperly instructed the jury. He first contends the evidence adduced at trial warranted an instruction on voluntary manslaughter. Upon a review of the record, this court finds appellant's contention to be groundless. An instruction on a lesser included offense is appropriate only where the trier of fact can find for the defendant and against the state on some element of the greater offense which is not required to prove the commission of the lesser included offense and for the state on the elements required to prove the commission on the lesser offense. State v. Solomon (1982), 66 Ohio St.2d 214, paragraph two of the syllabus. It is thus within the discretion afforded a trial court to refuse to instruct a jury on -20- a lesser included offense. State v. Dawson (Nov. 18, 1993), Cuyahoga App. No. 63122, unreported. It is appellant's position that the testimony established the possibility that the shooting of the victims was brought on by provocation sufficient to incite him into using deadly force and that, therefore, the trial court should have included an instruc- tion on voluntary manslaughter, R.C. 2903.03(A). In this case, however, appellant completely denied being at the Bells' apartment on the night of the incident. State v. Nolton (1969), 19 Ohio St.2d 133; State v. Peoples (1971), 28 Ohio App.2d 162. Moreover, there was not a scintilla of evidence that the victims either provoked him or that he was under the influence of a sudden passion or a sudden fit of rage when he calculatedly reacted to their attempt to defend themselves. See, e.g., State v. Mack (1998), 82 Ohio St.3d 198. Since the evidence adduced at trial thus did not support the elements of the crime of voluntary manslaughter, the trial court committed no error in failing to instruct the jury on this offense. State v. Shane (1992), 63 Ohio St.3d 630; State v. Underwood (1983), 3 Ohio St.3d 12; State v. Dawson, supra; cf., State v. Williford (1990), 49 Ohio St.3d 247. Appellant further asserts the trial court committed plain error in failing to provide the jury with cautionary instructions regarding identification testimony. Appellant's assertion is belied by the record, which reflects such instructions were given -21- immediately following the descriptions of the elements of the crimes with which appellant was charged. A review of the jury instructions as a whole thus reveals they were appropriate statements of the law applying to the case; therefore, the trial court did not infringe upon appellant's constitutional rights. Accordingly, appellant's second assignment of error presented by and through counsel and his fourth pro se assignment of error are overruled. Appellant's fourth assignment of error presented by and through counsel states: THE CONVICTIONS ARE AGAINST THE WEIGHT OF THE EVIDENCE. Reiterating his assertion the identification witnesses' testimony was unreliable, appellant argues the weight of the evidence does not support his convictions. Appellant cites State v. Mattison (1985), 23 Ohio App.3d 10, in support of his argument. In Mattison, this court stated that in making the determina- tion whether the decision of a factfinder is against the manifest weight of the evidence, several factors should be taken into account by the reviewing court. The stated factors were, however, merely guidelines to be taken into account when weighing the evidence and were not considered to be hard and fast rules. Id. at 14. See, also, State v. Jordan (1992), 73 Ohio App.3d 524. In State v. Thompkins (1997), 78 Ohio St.3d 380 at 386, the Ohio Supreme Court indicated the correct test to be utilized when -22- addressing the issue of manifest weight of the evidence was set forth in State v. Martin (1983), 20 Ohio App.3d 172, 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. (Emphasis added.) Moreover, a reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169; State v. Jenks (1991), 61 Ohio St.3d 259. It is axiomatic that 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. A review of the record in this case demonstrates appellant's convictions for aggravated murder, attempted murder, aggravated robbery, kidnapping, and having a weapon while under a disability were in accord with the manifest weight of the evidence. The state's witnesses presented a logical and, in view of the rapidity of the sequence of events that occurred, coherent summary of the circumstances surrounding the shootings of Mark Turner and Nathan Bell. Their testimony was supported by the physical -23- evidence introduced by the state. The testimony of appellant's witnesses, on the other hand, seemed almost rehearsed. The state presented reliable, credible evidence of appellant's guilt, and this court declines appellant's request to substitute its own judgment concerning the credibility of the witnesses and the weight to be given to their testimony. This court, therefore, cannot say that on the basis of the evidence the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Martin, supra at 175. The verdicts of guilty were, thus, not against the manifest weight of the evidence. State v. Johnson (1992), 79 Ohio App.3d 343; State v. Mack (Dec. 2, 1993), Cuyahoga App. No. 62366, unreported. Accordingly, appellant's fourth assignment of error presented by and through counsel is also overruled. Appellant's third assignment of error presented by and through counsel states: THE APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH AND FOURTEENTH AMEND- MENTS TO THE UNITED STATES CONSTITUTION BY THE FAILURE OF DEFENSE COUNSEL TO MOUNT AN EFFEC- TIVE MITIGATION. Appellant contends his counsel were constitutionally ineffec- tive at the mitigation stage of his trial because they failed to present sufficient evidence to establish the existence of all relevant mitigating factors. Appellant's contention, however, finds little support in the record. -24- The federal test for determining whether a defendant was denied effective assistance is whether the attorney's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington (1984), 466 U.S. 668. The focus in Ohio is whether a defendant received a fair trial and substantial justice was done. State v. Hester (1976), 45 Ohio St.2d 71, para- graph four of the syllabus. To establish a claim of ineffective assistance of counsel, a defendant must demonstrate that his attorney's performance was deficient and that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. State v. Bradley (1989), 42 Ohio St.3d 136. See, also, State v. Evans (1992), 63 Ohio St.3d 231; State v. Lytle (1976), 48 Ohio St.2d 391, vacated on other grounds (1978), 436 U.S. 910. There is a strong presump- tion defense counsel performed competently. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. Thus, appellant cannot meet his burden by making bare allegations that find no support in the record. State v. Smith (1985), 17 Ohio St.3d 98. Moreover, this court will not second-guess what could be considered to be matters of trial strategy. Id. The record with regard to trial counsels' actions in this case fails to demonstrate either that counsels' performance fell below an objective standard of reasonableness or that appellant was prejudiced by his counsels' actions. -25- Although appellant asserts defense counsel were deficient in failing to present more evidence in mitigation, the record reflects throughout the proceedings appellant refused to cooperate with his own mitigation experts, leaving his counsel with little choice in the decision to call witnesses in this regard. State v. Hunt (1984), 20 Ohio App.3d 310; State v. Saah (1990), 67 Ohio App.3d 86; State v. Coulter (1992), 75 Ohio App.3d 219. Moreover, appellant's parents' testimony presented evidence of several mitigating factors, including their lack of nurturing toward appellant and appellant's childhood experiences. Obviously, the testimony of appellant's parents and the presentation of appellant's own unsworn statement must have had an impact upon the jury since it did not recommend appellant receive the death penalty for his crimes. Equally obvious from the record in this case is defense counsels' expertise in making the most of what little was available to them. The record demonstrates defense counsel were capable, well-prepared and zealous in their defense of their client. Effective assistance of counsel does not guarantee results. State v. Hart (1988), 57 Ohio App.3d 4. In any case, in view of the overwhelming evidence of appellant's guilt, the record herein fails to show, with reasonable probability, that the jury's verdict would have been different had counsel called additional witnesses to testify in mitigation. Therefore, since appellant can demonstrate neither that trial counsels' actions fell below an objective standard of reasonable -26- representation nor that he was prejudiced by trial counsels' actions, appellant has failed to support his claim he was denied his right to effective assistance of counsel at the mitigation phase of his trial. Accordingly, appellant's third assignment of error presented by and through counsel is also overruled. Finally, appellant's third pro se assignment of error states: THE TRIAL COURT ERRED IN ENTERING JUDGEMENTS OF CONVICTION FOR AGGRAVATED-MURDER, 2-COUNTS OF AGGRAVATED ROBBERY AND 2-COUNTS OF AGGRA- VATED KIDNAPPING, WHICH UNDER THE CIRCUM- STANCES ARE ALLIED OFFENSES OF SIMILAR IMPORT, A VIOLATION OF THE MULTIPLE COUNT STATUTE, OHIO REVISED CODE, S2941.25. 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 -27- 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 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 stood guard in the dining room while Logan entered Jewetta's bedroom in order to rob her and Kevin. When Logan was unable to obtain immediately as much money as he desired, he forced Jewetta and Kevin, at gunpoint, to leave to room. The two approached appellant's location through the apart- ment hallway; when Nathan came to the aid of his brother, appellant ran into the hallway and fired his weapon twice, killing Turner instantly and striking Nathan in the leg. Thus, the restraint and the movement of the victims led to an increased risk of harm and was more than incidental to the aggravated robbery. The trial court, therefore, 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. -28- Accordingly, appellant's third pro se assignment of error is overruled. Appellant's convictions and sentences are affirmed. -29- 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. TIMOTHY E. McMONAGLE, P.J. and MICHAEL J. CORRIGAN, 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 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 .