COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78096 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION KENNETH J. RUSSO : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: MAY 31, 2001 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-382381. JUDGMENT: CONVICTION AFFIRMED; REVERSED AND REMANDED FOR SENTENCING. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: WILLIAM D. MASON, Esq. Cuyahoga County Prosecutor PERRY M. KENDALL, Jr., Esq. BRIAN P. MOONEY, Esq. Assistant County Prosecutors The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: SHAWN P. MARTIN, Esq. 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- SWEENEY, JAMES D., P.J.: Defendant-appellant Kenneth Russo appeals from his conviction for robbery in violation of R.C. 2911.01. The appellant was sentenced to a term of incarceration of four years. On May 14, 1999, an employee of Geppetto's Pizza, Keith Luber, was robbed while delivering a pizza to a home on Hunt Road in Strongsville, Ohio. As Mr. Luber was driving down Hunt Road, he observed a bicycle traveling in his same direction. Once passed the cyclist, Mr. Lubver looked in his rear view mirror and noted that the cyclist was someone he knew, Kenneth Russo. Mr. Luber continued down Hunt Road and passed the appellant. Mr. Luber was unable to locate the address to which he was to deliver the pizza. He turned around in the parking lot of Harpo's, a bar located on the corner of Hunt and West 130th Street. After turning around, Mr. Luber found the right house and pulled in the driveway. At this point the appellant could no longer be seen on the road. The victim exited his vehicle carrying the pizza and a two-liter bottle of pop and approached the side door where there was a light shining. As the victim approached the door, there was a light pointed directly at his eyes and he observed two individuals approaching him. The men grabbed Mr. Luber's neck, he dropped the pizza and pop, and then he ran to his truck. The assailants were dressed in black, complete with masks and gloves. The men pinned Mr. Luber against his truck and then demanded money. Once the men obtained the Geppetto's check and $70 or $80 in cash that Mr. Luber was -3- carrying, they struck the victim in the face. During the attack, Mr. Luber could feel something sharp digging against his thigh. The men released Mr. Luber and he retreated to Geppetto's. He then noticed a three or four-inch-slash on his forehead which necessitated a visit to the emergency room. Victor Lovell, the director of operations for Geppetto's Pizza in Strongsville, arrived at the scene of the robbery very shortly after its occurrence. A Strongsville Police Officer was parked in a neighboring drive awaiting backup. Mr. Lovell pulled his vehicle into an adjoining parcel of land. This parcel was a buffer zone bordering the strip shopping center which contained trees and bushes. Mr. Lovell's headlights revealed an individual on a bicycle traveling east out of the location of the altercation. As his headlights shone on the individual, that person jumped off of the bicycle and fled the scene. Mr. Lovell spoke to the police officer and at the officer's direction retrieved the bicycle and placed it in the police cruiser's trunk. Strongsville Police Officer Michael Norris responded to the Geppetto's pizza establishment. The victim was bleeding and looked to be in shock. Officer Norris left Geppetto's and proceeded to the scene of the crime. The crime scene is an abandoned house in a heavily wooded and dark area which is close to a shopping center. A flashlight had been duct taped to the side door of the abandoned house and was placed so as to resemble a normal door light. Officer Ryan McMahon, who was the first officer to respond to the scene, later canvassed the neighborhood looking for the -4- perpetrators. Instead of the suspects, he found a dark hooded sweatshirt draped over a mailbox on Clipper Cover. The appellant's father, Charles Russo, testified that he had recently separated from his wife, the appellant's mother. He identified his bicycle as the one recovered during the police investigation of the robbery. Mr. Russo testified that the bicycle was in his garage at the house on Fairwinds Drive when he left the house to return to his apartment between 5:30 and 6:30 p.m. on August 14, 1999. The bike was not there the next morning when he picked up his wife and daughter for church. He later learned that the appellant had taken the bicycle. The appellant had been previously told by his father to bring the bike home and leave it at home. When he asked the appellant the location of the bicycle, the appellant responded that he did not know. Mr. Russo described his son as a very compassionate, sensitive person who has made some irresponsible choices. The appellant had received a soccer scholarship to college, but had failed to do well at school and ultimately dropped out. Mr. Russo stated that the appellant is a very friendly, affable person, but that he did not approve of the appellant's choice of friends. Brandon Sedlock, Doug McCulley, and Andrew Moroneso were friends of the appellant's during the summer of 1999. On August 14, 1999, Sedlock was at his home on Lunn Road in Strongsville with a few other friends. The appellant called Sedlock at approximately -5- 1:00 a.m.1 and stated that his bike had been stolen at Harpo's. The appellant arrived at Sedlock's home some time between 1:30 and 2:00 a.m. and was acting strange, off-the-wall, nervous (T. 326.) Although Sedlock had been around the appellant all summer, the appellant had never exhibited this behavior. The appellant was talking not making sense like twitching maybe. I don't know. I can't explain it. (T. 326.) The young men, who were drinking and using drugs, stayed at the Sedlock home until 7:00 a.m. the next morning. Doug McCulley stated that Andy Moroneso drove the appellant to Harpo's on August 14, 1999 at approximately 9:00 p.m. Nick Takach and the appellant returned to Sedlock's home between 1:30 and 2:00 a.m. The appellant stated that his father's bike had been stolen from Harpo's. McCulley testified that the appellant was not acting like he was all with it that night. (T. 336.) A week or so prior to the robbery the appellant stated to McCulley, Sedlock, and Moroneso that it would be cool to call to an abandoned house and then wait for the guy there. (T. 335.) McCulley is no longer friends with the appellant because I don't need the BS. (T. 337). Andrew Moroneso was also questioned by the police. Moroneso was present at Sedlock's home at approximately 1:30 a.m. when the appellant stated that his father's bicycle had been stolen from Harpo's. Earlier in the evening, at some time between 9:30 and 10:30 p.m., Moroneso had driven the appellant from Sedlock's home 1Although the testimony is not clarified, seemingly the early morning hours would have been August 15, 1999. -6- to Harpo's. Moroneso could not remember whether these events occurred on Friday night or Saturday night. Andrea Felker was one of the bartender's at Harpo's on August 14, 1999. Although it was a busy night, Ms. Felker does not remember the appellant's presence that evening at Harpo's. Because she has had conversations with the appellant, she testified that had he spoken with her that night, she would have remembered. The evening was memorable because those in the bar were aware that the police were searching for someone in the area. Ms. Felker testified that the appellant approached her about a month later and was trying to discuss what had happened that night and kind of said to me along the lines of I was here that night, wasn't I. (T. 357.) Strongsville Police Detective Lee Colegrove was the lead officer investigating this case. The appellant stated to the police that he retrieved his father's bicycle from Brandon Sedlock's house on Friday morning, August 13, 1999. He then left the bicycle in front of the garage. Upon further questioning, the appellant could not remember whether he had retrieved the bicycle on the 12th , 13th or 14th of August. He noticed the bike was missing on August 15th. The appellant informed the police that on the night of August 14th he walked to Harpo's for a drink and walked home. Nick Takach came to his house and they both went to Brandon Sedlock's home. The appellant denied riding a bicycle on Hunt Road that evening. -7- During questioning the appellant appeared nervous and fidgety. He was scratching and stated that he had poison ivy on his chest and arm. The appellant stated that he was exposed to the poison ivy because he had been shooting a paint ball gun. The appellant explained the scratch marks on the back of his neck by stating that he had been hauling lumber. The appellant became more agitated the longer he was questioned. When Detective Colgrove examined the crime scene area, he found poison ivy in the brush. The testimony of Detective Colegrove tied together the details of the investigation. Two telephone calls were made to Geppetto's from a public telephone located on the RTA lot at Drake and Howe Roads in Strongsville. The telephone is approximately one and one- half miles from the crime scene. Testing was performed on the sweatshirt found by Officer McMahon and no match with the appellant's hair sample was found. No latent fingerprints were found on the battery powered flashlight which had been duct-taped to the abandoned house. When questioning the appellant's friends, Detective Colegrove found the young men, while not exactly uncooperative, had to have answers drawn out of them. After initial reluctance, the young men gave statements. On September 3, 1999, Detective Colegrove arrested the appellant. He arrived at the appellant's home and was given entrance by the appellant's father. They proceeded to the appellant's bedroom. When the door was opened, the appellant could not be seen in the room. The appellant's father crossed the room -8- and opened the door to the walk-in closet and found the appellant inside the closet. The appellant asserts eight assignments of error. The first assignment of error: THE APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL BECAUSE THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING TESTIMONY CONCERNING ALLEGED PREVIOUS AND/OR SUBSEQUENT ACTS OF THE APPELLANT IN VIOLATION OF EVID.R. 404(B), ALL TO APPELLANT'S PREJUDICE. The appellant asserts that other acts evidence was improperly admitted and used to demonstrate that he was a thief, a liar, and a person who made irresponsible decisions. Specifically, the appellant states that evidence regarding the appellant's use of his father's bicycle without his father's permission improperly portrayed him as a thief and a liar. The appellant argues that his father's testimony regarding his irresponsible choices was improper character evidence. The appellant also takes issue with the testimony of his friends. Brandon Sedlock testified that the appellant had stolen his income tax check and Doug McCulley testified that he no longer associated with the appellant because he did not need the BS (T. 337). The appellant believes that these errors were so prejudicial so as to entitle him to a new trial. The appellant readily admits that no objections were raised to either the character evidence or to the other acts evidence. Absent plain error, the right to assert as error on appeal that the admission of evidence is improper is waived where no objection was -9- raised at trial. State v. Lindsey (2000), 87 Ohio St.3d 479. Pursuant to Crim.R. 52(B), plain error consists of obvious error or a defect in the trial proceedings which affects a substantial right. Only where the outcome of the trial clearly would have been different is a reversal warranted. Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Long (1978),53 Ohio St. 2d 91, paragraph three of the syllabus. The errors complained of by the appellant do not rise to the level of plain error in the instant matter. Such evidence was before the jury that this small amount of testimony would not have changed the outcome of the trial. As noted infra, the appellant's conviction is supported by both the weight and sufficiency of the evidence. The appellant's first assignment of error is overruled. The second assignment of error: THE APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL DUE TO THE MISCONDUCT OF THE PROSECUTING ATTORNEY. The appellant asserts that the prosecutor improperly placed the appellant's character in evidence; that in closing argument the prosecutor asked the jury to put themselves in the victim's place; and that the prosecutor, through Detective Colegrove, vouched for the veracity of Andrew Moroneso. As the Supreme Court held in State v. Cornwell (1999), 86 Ohio St. 3d 560, the test for prosecutorial misconduct is whether -10- remarks were improper and, if so, whether they prejudicially affected substantial rights of the accused. State v. Smith (1984), 14 Ohio St. 3d 13. The Court found the touchstone of analysis is the fairness of the trial, not the culpability of the prosecutor. Smith v. Phillips (1982), 455 U.S. 209, 219, 102 S. Ct. 940, 947, 71 L. Ed. 2d 78, 87. The Supreme Court has also stated that the conduct of a prosecuting attorney during trial cannot be made a ground of error unless the conduct deprives the defendant of a fair trial. Statev. Keenan (1993), 66 Ohio St.3d 402, citing to State v. Apanovitch (1987), 33 Ohio St.3d 19. Failure to object to the alleged instances of prosecutorial misconduct waives all but plain error. State v. Bey (1999), 85 Ohio St.3d 487. In the case sub judice, any error committed by the state was not so egregious as to deprive the appellant of a fair trial. The appellant is complaining of only one small portion of the entire closing argument and such limited impropriety is cured by the trial court's instruction to the jury that argument by counsel is not evidence. State v. Turner (1993), 91 Ohio App.3d 153. As to the testimony of Detective Colegrove, no objection was raised at trial to the specific statements raised by the appellant on appeal, and thus all, but plain error is waived. Detective Colegrove's testimony regarding the course of his investigation was not such a comment on the veracity of Mr. Moroneso's testimony as would rise to the level of plain error. Notwithstanding the result in this case, this court notes that a fine line separates a fair trial and the deprivation of due -11- process. As can be seen from the statement of the law as set forth supra, the fundamental issue when reviewing an allegation of prosecutorial misconduct is the fairness of the trial and not the conduct of any one attorney. Today this court has once again been called upon to review a case where the prosecutor has translated this legal principle into a license to make gratuitous and inappropriatecomments. We would be remiss in failing to say that walking such a fine line is courting with reversal. The appellant's second assignment of error is overruled. The third, fourth and fifth assignments of error: THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL AS THERE WAS INSUFFICIENT EVIDENCE TO PROVE EACH AND EVERY ELEMENT OF THE CRIME CHARGED BY PROOF BEYOND A REASONABLE DOUBT. THE APPELLANT'S CONVICTION AND SENTENCE ARE CONSTITUTIONALLY INFIRM AS THE PROSECUTION FAILED TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSE CHARGED BEYOND A REASONABLE DOUBT. THE APPELLANT'S CONVICTIONS (sic) ARE (sic) AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The appellant states that there is no evidence linking him to this crime, the state failed to prove the elements of either aggravated robbery or the lesser included offense of robbery, and that the weight of the evidence does not support the appellant's conviction. The Ohio Supreme Court has clarified the distinction between reviewing questions of manifest weight of the evidence and questions of sufficiency of the evidence. In State v. Thompkins (1997), 78 Ohio St.3d 380, the court found that, in essence, -12- sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. Id. at 386. In addition, a conviction based upon legally insufficient evidence is a denial of due process. Thompkins, supra, citing to Tibbs v. Florida(1982), 457 U.S. 31, 45. As Justice Cook succinctly stated in the concurrence of Thompkins, a challenge to the sufficiency of evidence supporting a conviction requires a court to determine whether the state has met its burden of production at trial. Courts are to assess not whether the state's evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction. By contrast, the Thompkins Court illuminated its test for manifest weight of the evidence by citing to Black's Law Dictionary (6 Ed. 1990) at 1594: Weight of the evidence concerns `the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. Thus, as the concurring opinion noted, when deciding whether a conviction is against the manifest weight of the evidence, an appellate court determines whether the state has appropriately carried its burden of persuasion. The only special deference given in a manifest weight review attaches to the conclusion reached by the trier of fact. Thompkins, (Cook, J., concurring) citing to State v. DeHass (1967), 10 Ohio St.2d 230. -13- Robbery has been defined by the legislature at R.C. 2911.02, which states: (A) No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall do any of the following: (1) Have a deadly weapon on or about the offender's person or under the offender's control; (2) Inflict, attempt to inflict, or threaten to inflict physical harm on another; (3) Use or threaten the immediate use of force against another. Here, the victim suffered injuries from the assault which required attention in the hospital. This assault was committed during the theft of the money the victim held for Geppetto's. The victim identified the appellant as the only person observed on a bicycle near the scene of the crime prior to its occurrence; the bicycle regularly used by the appellant was found at the scene of the crime; after the crime was committed the appellant stated to friends that his father's bicycle had been stolen; the appellant discussed such a crime with his friends prior to committing the crime; the bartender testified that the appellant approached her and attempted to establish an alibi a month after the crime; and at the time of his arrest, the appellant hid in his closet from the police. Through this evidence the state provided proof beyond a reasonable doubt that the appellant was one of the perpetrator's of this crime. The conviction is supported by the weight and sufficiency of the evidence. The appellant's third, forth and fifth assignments of error are overruled. -14- The sixth assignment of error: THE APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. The appellant argues that appellant was denied effective assistance of counsel through counsel's failure to object to inadmissable other acts evidence under Evid.R. 404(B); counsel failed to object to the prosecutor's misconduct; counsel improperly stated in opening argument that the appellant would take the stand; and, counsel promised evidence in opening argument which was never produced. Ineffective assistance claims are evaluated in a two-step process. First, the defendant must show that counsel's representation fell below an objective standard of reasonableness. State v. Keenan (1998), 81 Ohio St.3d 133, 152, citing to Strickland v. Washington (1984), 466 U.S. 668, 688. Second, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. See also State v. Davie (1997), 80 Ohio St.3d 311, 331 and State v. Reynolds (1997), 80 Ohio St.3d 670, 674. There is a strong presumption that licensed attorneys are competent and that the challenged action is the product of sound trial strategy. State v. Hamblin (1988), 37 Ohio St.3d 153. Even debatable tactics do not constitute ineffective assistance of trial counsel, for it is obvious that nothing is seen more clearly than with hindsight. State v. Clayton (1980), 62 Ohio St.2d 45, 49. A reviewing court must evaluate trial counsel's -15- performance on the facts of the particular case as of the time of counsel's conduct. Strickland, supra. In the matter at hand, it is conceivable that the counsel permitted evidence of the appellant's troubled past to be presented to the jury as a trial tactic in an attempt to elicit sympathy for the appellant. Even if this court considered such a tactic to fall below an objective standard of reasonableness, there is no reasonable probability that the outcome of the trial would have been different. The errors complained of by the appellant were all harmless beyond a reasonable doubt. As noted in the previous assignments of error, the appellant's conviction is supported by both the weight and sufficiency of the evidence. The appellant's sixth assignment of error is overruled. The seventh assignment of error: THE APPELLANT WAS SENTENCED FOR (sic) CRIME FOR WHICH HE WAS ACQUITTED IN VIOLATION OF HIS RIGHTS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS. A review of the sentencing transcript indicates that the appellant's assertion that he was improperly sentenced is well taken. It is clear from the record that the court sentenced the appellant for the crime of aggravated robbery, a charge for which the jury acquitted him (T. 496, 497). In State v. Smith (Aug. 3, 2000), Cuyahoga App. No. 76919, unreported, this court determined a similar case. This court held: Defendant also complains that during the course of sentencing, the trial court indicated that he had committed a higher degree of crime than that to which he pleaded guilty. Defendant was charged with the crime of rape but pleaded guilty to the lesser charge of attempted -16- gross sexual imposition as part of a plea bargain. It is well established that, a trial court may not impose a greater sentence upon an offender because of its belief that the offender committed a more serious offense than that for which he has been convicted. See e.g., Columbus v. Jones (1987), 39 Ohio App. 3d 87, 89-90, 529 N.E.2d 947. In Smith, supra, this court found that it was not clear whether the court's misstatement had any impact on the sentence imposed and so remanded for resentencing to dispel any doubt. By analogy, this court might consider State v. Gipson (May 20, 1999), Cuyahoga App. No. 75369, unreported, where this court has found that it is error for a trial judge to base a sentence upon a crime neither charged nor proven. In Gipson, this court cited to: State v. Henley (Oct. 29, 1998), Cuyahoga App. No. 74305, unreported, citing to State v. Longo (1982), 4 Ohio App.3d 136; Columbus v. Jones (1987), 39 Ohio App.3d 87; State v. Jeffers (1978), 57 Ohio App.2d 107; and, State v. Patterson (1996), 110 Ohio App.3d 264. This court has found such a sentence to be a clear abuse of discretion. Longo, supra. The appellant's seventh assignment of error is well taken. The eighth assignment of error: CUMULATIVE ERRORS DEPRIVED THE APPELLANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. The appellant asserts that the cumulative errors committed by the prosecution and his trial counsel during his trial are sufficient to require a reversal of his conviction. In State v. Fears (1999), 86 Ohio St. 3d 329 the Ohio Supreme Court cited to State v. DeMarco (1987), 31 Ohio St.3d 191, -17- paragraph two of the syllabus, and State v. Moore (1998), 81 Ohio St.3d 22, for the proposition that although a particular error might not constitute prejudicial error in and of itself, a conviction may be reversed if the cumulative effect of the errors deprives the defendant of a fair trial. The only prejudicial error this court has found herein is the error committed at sentencing. The appellant was not denied a fair trial and, thus, there is not such cumulative error as to require reversal. The appellant's eighth assignment of error is overruled. Judgment affirmed as to the conviction, but reversed and remanded for resentencing. -18- It is ordered that each party pay one-half of the costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, J., and ANN DYKE, J., CONCUR. ______________________________ JAMES D. SWEENEY PRESIDING JUDGE 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .