State v. Smith

[Cite as State v. Smith, 2011-Ohio-3051.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 95243

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

DUANE SMITH
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED IN PART AND VACATED
IN PART

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-532637

BEFORE: Sweeney, P.J., Rocco, J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: June 23, 2011
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ATTORNEY FOR APPELLANT

Paul Mancino, Jr., Esq.
75 Public Square, Suite 1016
Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Vincent I. Pacetti, Esq.
Andrew J. Santoli, Esq.
Asst. County Prosecutors
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113

JAMES J. SWEENEY, P.J.:

{¶ 1} Defendant-appellant, Duane Smith, was charged in a twenty-two count

indictment for an incident that occurred during a residential poker game on October 26,

2009. Following a bench trial, defendant was found guilty of multiple offenses relating to

each victim, including aggravated burglary, aggravated robbery, kidnapping, theft, having

weapons while under disability, and various specifications. For the reasons that follow, we

vacate defendant’s convictions on the repeat violent offenders specifications and affirm his

convictions and sentence in all other respects.
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{¶ 2} Thomas Gross testified that he attended a poker game at Matt Shultz’s Lake

Road residence in Cuyahoga County, Ohio on October 26, 2009. Also present were five

other men identified as: Charlie, Chris, Simon, Khai, and Jonathan Powell. He had played

poker with Powell before. That evening, Gross observed Powell spending a lot of time on

his cell phone, sending text messages. Gross also noticed that Powell had exited and

returned to the apartment about four or five times that night.

{¶ 3} Gross had purchased approximately $200.00 worth of poker chips and was

“up about 300” in the game. After Powell went out to smoke, there was a knock on the

apartment door. Chris answered it, and Powell was thrown into the apartment and

followed by two African American men with guns. One entered and ordered the men to

take off their pants, which were placed into garbage bags. That man was shorter and

stockier than the other who remained in the doorway. Gross did not get a good look at the

men and could not identify them. Gross attempted to throw his cell phone, keys, and

money underneath a nearby desk. At that point, the gunman stuck a gun in his face and

Gross noticed he had a beard. The gun appeared to be a semiautomatic, machine gun that

closely resembled a Mack 10. Gross was familiar with guns and believed the weapon was

a real firearm. After gathering the victims’ belongings, the gunman ushered the men into

the 4’9” wide kitchen area where he sprayed them with pepper spray. The gunmen left

and, within ten minutes, the victims called the police on a cell phone. Gross was

suspicious of Powell but did not initially mention this to the police. Gross testified that
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the men stole just under $2,000.00 in cash from him along with his iPhone, his car keys,

and his pants, belt, and wallet.

{¶ 4} Matthew Shultz testified that he hosted a poker game in his efficiency

apartment on the night of October 26, 2009. He operated as the bank whereby he would

exchange the players’ money for chips and hold the money in his front pocket. He was

wearing khaki pants and a red button-up shirt that night. The players that night were Tom

Gross, Khai, Charlie, Chris, Simon, and Jonathan Powell. He met Powell about three

years prior when they played in games at Nautica. Powell had attended other poker

games at Shultz’s house before October 26, 2009. Shultz said Powell was acting out of

character that night and was not playing in his typical fashion. Powell was also texting on

his phone the whole time and took several smoking breaks. Shultz described Powell as

disengaged and drinking several beers. The last time Powell left, he was gone for thirty

minutes and, when he returned, the men were robbed.

{¶ 5} There was a knock on the door, Chris opened it and Powell came “flying in

the door, like someone pushed him,” and two other people with a machine gun were

behind him. The first man went right to Shultz and demanded the money, which he gave

him. The men ordered the poker players to get on the floor, take off their pants and empty

their pockets. The man held the gun to Shultz’s head. The man had a hood on but Shultz

said he got a good look at his face. Shultz made an in-court identification of defendant as

the man who robbed him at gunpoint. He was one hundred percent certain.
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{¶ 6} Shultz complied with the orders of the gunmen. The other man stayed

mostly in the doorway. They collected cell phones, clothes, and money. Then, they took

the poker players into the kitchen one by one and sprayed them with an orange substance.

He heard a foot pattern and his door close. They waited about 30 seconds and the victims

dispersed from the kitchen and called police.

{¶ 7} Shultz recalled looking around the room during the robbery and noticed

Powell acting odd; he was the only one that was excessively convulsing and crying.

Everyone else was calm and doing what they were told. Shultz felt Powell’s reaction

looked fake. Shultz did not get a good look at the second gunman, except to notice that

he was taller, slender, and had a handgun. Police arrived within thirty minutes and, at that

time, Shultz related his suspicions about Powell.

{¶ 8} Det. Lynch contacted Shultz a few days later and obtained his statement.

Shultz provided Det. Lynch with two phone numbers for Powell. Shultz was shown two

photo arrays and identified defendant as the man who held him at gunpoint. Shultz was

one hundred percent certain of this identification. However, Shultz was unable to identify

anyone from the second photo array, which included a photograph of Stanley Smith, the

other alleged gunman. Shultz remained in close contact with Det. Lynch throughout the

course of the investigation.

{¶ 9} Chris Foertch testified that he was also present at the October 26, 2009 poker

game at Shultz’s residence. He opened the door when Powell was shoved inside by two
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men. Foertch was unable to identify either of the assailants. His testimony was similar

to the other eyewitness, indicating the men were told to get on the floor, take off their

pants, which were collected in trash bags. The men were placed in the kitchen and

sprayed with mace. Foertch lost between $600.00 to $800.00 that night.

{¶ 10} Charlie Ha was present at the October 26, 2009 Shultz’s poker game. He

indicated that he had previously been robbed at a poker game in Solon and was, for that

reason, concerned for his safety. Ha asked Shultz to identify people before buzzing them

into the apartment. Ha stated that Shultz also removed his address from the public

website for safety purposes; which made the game’s location known only to the players.

Ha was unable to identify the two robbers that followed Powell into the apartment. Ha

brought approximately $1200.00 to the game, which was stolen.

{¶ 11} Reba Smith was charged as a co-defendant in this case and is defendant’s

cousin. She testified that defendant participated in the October 26, 2009 robbery at

Shultz’s apartment, along with Powell and another cousin, Stanley Smith. Powell and

Reba had dated in the past. Reba maintained that Powell had asked her to help him get a

television from the westside of Cleveland. She drove Powell’s SUV and he entered the

apartment. Later, her cousins, Stanley and defendant, pulled into the parking lot in a

white car. At this point, they spoke with Powell and then both got into the SUV. She

claims this is when she found out that the men planned to rob people inside the apartment.

She waited inside the car and exchanged text messages with Powell who identified the
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man in the red shirt as the person with the money. Eventually, Powell sent a text telling

her to send defendant and Stanley inside. She saw them go inside and come out with

garbage bags shortly after. Reba did not see any weapons during the entire incident.

They drove back to Stanley’s “baby mama’s” house and Powell met them there later.

Reba believed that defendant threw out one of the garbage bags on their way home. The

men divided up the money and she received $200.00. Reba testified that she did discuss

the incident with her family. Police arrested her on December 23, 2009 and she

cooperated with police, gave a statement, and pled guilty to some of the charges against

her. As part of her plea agreement, Reba had to testify against defendant in this case.

{¶ 12} Powell testified that he met defendant and Stanley Smith through his

ex-girlfriend Reba Smith. Although Reba and Powell were no longer dating on October

26, 2009, he continued to remain friends with her. Powell said that on the “spur of the

moment” plans were made to rob a poker game he was attending on the night of October

26, 2009. According to him, Reba knew about the robbery plan all along. He said Reba

drove defendant and Stanley Smith in his SUV to the westside, while he drove separately

in Reba’s white car. They used two cars because they needed a getaway vehicle. He went

inside as they waited in the parking lot watching movies in his SUV until he told them to

come inside. Powell confirmed that he took several smoking breaks during the course of

the evening. Reba kept sending him text messages urging him to hurry up because she had

to pick up her son. Powell went outside and they decided defendant and Stanley would
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follow him inside. Defendant and Stanley had guns, which he claimed they brought.

Powell’s shirt was ripped to make it look like he had been roughed up. He knocked on

the door and when Chris opened it, he was thrown inside. He tried to make it look like he

was not involved and mostly kept his head down. They had trash bags to collect

everyone’s pants, cell phones, keys, and money. Powell was surprised when they sprayed

them with mace because he was not aware of this part of the plan. Powell said he gave a

brief statement to police and did not think anyone suspected him. He became concerned

when Shultz called police and the story was aired by the media. There was also a concern

that defendant had told his girlfriend about the robbery and that she was threatening to call

Crime Stoppers, which is documented by text messages exchanged between Reba and

Powell. When Reba was arrested, she called Powell who was reluctant to discuss it with

her for fear she was working with police to apprehend him. Eventually, Powell turned

himself in, pled guilty to certain charges, and provided a statement to police. Powell’s

plea agreement also required him to testify against defendant.

{¶ 13} Det. Lynch was assigned to investigate this case on October 27, 2009. He

remained in close contact with Shultz, who provided him with Powell’s cell phone

numbers. Det. Lynch subpoenaed the phone records and received a series of documents

reflecting text messages sent by Powell’s phones during the time in question. Both

Powell and Reba confirmed the accuracy of the text messages sent between them that are

reflected in those records. Lynch issued arrest warrants for Reba and Powell and arrested
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Reba in December of 2009. She indicated that defendant and Stanley Smith participated

in the robbery, which lead to arrest warrants being issued for them. Det. Lynch

interviewed defendant in January of 2010 and advised defendant of his constitutional

rights. First, defendant denied any involvement but after he was advised that Shultz had

identified him, defendant changed his statement. Det. Lynch testified that defendant

instructed him not to record his statement in any way. Defendant also refused to implicate

his cousin and referred to the other individual as “Dude.” According to Det. Lynch,

defendant admitted that he participated in the robbery along with Reba and Powell. The

only difference between defendant’s version and Powell’s version was that defendant

claimed that Powell had supplied the guns. Later, Det. Lynch recorded notes of

defendant’s statement on a Scene Magazine while he was having dinner. The next day,

Lynch used the notes to prepare his supplemental report.

{¶ 14} Det. Lynch confirmed that he was present for the entire trial and that the

evidence was inconsistent with respect to the amount of money involved. He also

indicated that he was unable to follow up with one of the victims, Khai.

{¶ 15} Although identified as victims in multiple counts of the indictment, Khai and

Simon did not testify at defendant’s trial.

{¶ 16} The trial court granted defendant’s motion for acquittal in part and dismissed

counts 4, 5, 10, 11, 16, and 17.
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{¶ 17} The defense presented the testimony of defendant’s grandmother, his

mother, and himself. Defendant’s grandmother testified that Reba came to her house to

discuss the incident. Defendant’s mother said that defendant was with her at home by

9:00 p.m. on October 26, 2009 and was there when she woke up around 11:00 a.m. the

next day. However, she said she fell asleep watching wrestling and did not know what

defendant was doing while she was asleep.

{¶ 18} Defendant testified that he went with Reba to the westside apartment

complex the evening of October 26, 2009. He said that she wanted him to help her get a

television. According to defendant, they waited in the parking lot for Powell but then

defendant had Reba drive him home around 9:00 p.m. Defendant insisted that he left the

location three hours before the robbery occurred. It was defendant’s testimony that Reba

was lying because she was in love with, and afraid of, Powell. Defendant believes that

Powell was also lying and implicated him in the robbery because there was a dispute

between them as a result of defendant’s cousin, Alecia, taking Powell’s money in an

unrelated incident. Defendant also testified that Det. Lynch was lying and had fabricated

evidence. Specifically, defendant denied making any statement or admissions to Det.

Lynch.

{¶ 19} The court found defendant guilty of all remaining charges and specifications
and merged the allied offenses of similar import. The State elected to pursue sentencing
on counts 1, 2, 3, 6, 7, and 20 for which the court imposed an aggregate sentence of
eighteen years. Defendant appeals assigning multiple errors for our review, which will be
discussed together where appropriate for ease of discussion.
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{¶ 20} Also, because this matter proceeded to a bench trial, with respect to each

assignment of error we must presume that the trial judge disregarded any improper

testimony. Columbus v. Guthmann (1963), 175 Ohio St. 282, 194 N.E.2d 143, paragraph

three of the syllabus.

{¶ 21} “I. Defendant was denied due process of law and fair trial when the court

permitted Det. Thomas Lynch to testify as to the truth and veracity of witnesses.”

{¶ 22} Defendant relies on case law that holds it is improper for a witness to vouch

for the credibility of another witness. State v. Young, Cuyahoga App. No. 79243,

2002-Ohio-2744 (holding that it was plain error when a detective testified that a witness

was “telling the truth.”)

{¶ 23} Defendant believes the following testimony from Det. Lynch attests to the

truth of what Powell had told him and invaded the province of the jury:

{¶ 24} “Q. Okay. Did you later get a statement from Jonathan Powell?

{¶ 25} “A. Yes. About two weeks ago on May the 5th I took an audio statement

from Mr. Powell.

{¶ 26} “Q. And in regard in that statement, what did Mr. Powell tell you about the

robbery?

{¶ 27} “A. Mr. Powell basically told me the same thing that Duane Smith told me

with the only difference being that he didn’t set the robbery up. It was kind of an agreed

thing. Interviewing Mr. Smith he told me that Mr. Powell had furnished them with the
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weapons. Mr. Powell said that was absolutely not true, that they had the weapons. He

didn’t know much about guns but he basically corroborated what Duane Smith had already

told me.”

{¶ 28} Defendant did not object to this testimony and, therefore, has waived all but

plain error.

{¶ 29} Det. Lynch did not vouch for the credibility of any witness. He testified that

two people provided similar statements to him. To say that one statement corroborated

another is not to say that either was true but rather that one agreed with the other, that they

were consistent. Det. Lynch did not testify that either Powell or defendant was telling the

truth; nor did he give his opinion as to the veracity of their respective statements.

Defendant’s testimony in which he denied making any statement to Det. Lynch created a

conflict in the evidence, that being between the credibility of Det. Lynch’s testimony

versus defendant’s testimony concerning his alleged statement, or lack thereof. Resolving

the conflict among the witnesses’ testimony was a matter appropriately left to the trier of

fact. This assignment of error is overruled.

{¶ 30} “II. Defendant was denied his right to present a defense.”

{¶ 31} Defendant complains that he was not able to thoroughly examine the

potential bias of Powell with respect to an alleged dispute he had with defendant’s family.

Defendant also maintains that he was improperly prohibited from eliciting testimony from

his grandmother about what Reba allegedly told her. Finally, defendant believes that he
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was unable to fully elaborate on the details of Powell’s alleged dispute with his cousin,

Alecia Smith. Defendant argues that these instances precluded him from presenting

evidence of Powell’s alleged bias and prejudice against him.

{¶ 32} In the bench trial, evidence was elicited that alleged defendant’s cousin,

Alecia Smith, had taken money from Powell, that Powell was upset and that defendant

became involved in resolving the dispute. Several witnesses, including defendant,

testified about the details of this incident. In fact, defendant went into great detail about

this episode. Eventually, the trial court requested defense counsel to re-direct the

testimony to the events of October 26, 2009. At that point, defense counsel explained that

the purpose of the testimony surrounding the Alecia Smith incident was to illustrate “why

Powell would say [defendant] was one of his accomplices. He had a motive to lie.” The

trial court indicated that the defense had established there was a dispute and the court

understood the nature of the dispute. With that, the defense agreed to move on to other

testimony. The trial court did not abuse its discretion concerning the admission of

evidence of Powell’s potential bias or prejudice concerning the Alecia Smith incident; nor

was defendant denied an opportunity to present a defense with regard to it.

{¶ 33} The trial court precluded the defense from questioning Jean Smith about the

contents of a conversation she allegedly had with Reba. The defense argued that the

testimony was admissible to impeach Reba who they believed had testified she did not

discuss the incident with her grandmother, Jean Smith. Reba’s testimony is somewhat
 14
unclear as to whether she had discussions about the case with her grandmother, Jean

Smith. Assuming Reba did deny having a conversation with Jean Smith, the trial court

allowed the defense to elicit testimony from Jean Smith that Reba did, which served the

purpose of impeaching any statement made by Reba to the contrary. While defendant

contends that the trial court erred by excluding the contents of the conversation in that it

was allegedly probative of Reba’s truthfulness, we cannot say the trial court erred by

excluding it because that portion of Jean Smith’s testimony is not a part of, or otherwise

described, in the record.

{¶ 34} This assignment of error is overruled.

{¶ 35} “III. Defendant was denied effective assistance of counsel.”

{¶ 36} To establish his claim of ineffective assistance of counsel, defendant must

show that (1) the performance of defense counsel was seriously flawed and deficient; and

(2) the result of appellant’s trial or legal proceeding would have been different had defense

counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Brooks (1986), 25 Ohio St.3d 144, 495 N.E.2d

407.

{¶ 37} Defendant premises his ineffective assistance of counsel claim on the

following: (1) a motion to suppress identification was not filed; (2) a motion to suppress

oral statements was not filed; (3) counsel did not request a continuance due to late

discovery; (4) counsel did not attempt to exclude evidence of defendant’s prior
 15
convictions; and (5) counsel was allegedly not prepared for trial. For the reasons

discussed below, the record does not support defendant’s allegations of ineffective

assistance of counsel.

{¶ 38} Failing to file a motion to suppress does not constitute ineffective assistance

of counsel, per se. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d

1038, ¶208; see, also, State v. Weatherspoon, Cuyahoga App. No. 89996,

2008-Ohio-2345; State v. Hamilton, Cuyahoga App. No. 90141, 2008-Ohio-455. Rather,

to establish ineffective assistance of counsel for failure to file a motion to suppress, a

defendant must prove that there was a basis to suppress the evidence in question.

Weatherspoon, supra.

{¶ 39} Defendant contends a motion to suppress was warranted because he believes

there was an issue as to whether defendant had been properly advised of his constitutional

rights before he made the oral statements. However, Det. Lynch clearly testified as

follows, “I told him why I was there, advised him of his Constitutional Rights, which he

stated he understood and asked him if he wanted to speak to me regarding this incident.”

(Emphasis added.) There is no indication in the record that defendant was not properly

advised of his rights. Further, defendant testified that he did not make any oral statements

to Det. Lynch and that essentially Det. Lynch had fabricated that part of his testimony.

Whether or not the oral statements were made is a matter of factual credibility but it does

not serve as a basis for suppressing the statement. To the extent defendant complains that
 16
Det. Lynch did not record his statement, Det. Lynch testified that he did not do so because

defendant would not allow it. It was not ineffective assistance of counsel to not pursue a

motion to suppress defendant’s statements. In a related attack on his counsel’s

performance, defendant asserts his counsel was deficient for not seeking a continuance due

to the late production of Det. Lynch’s handwritten notes.

{¶ 40} According to Det. Lynch, defendant did not allow him to take

contemporaneous notes, which is why he wrote them down later on a Scene Magazine

during his dinner-lunch break. Det. Lynch then put his notes into a supplemental report

that was provided to the defense prior to trial. The handwritten notes were used by the

State in rebuttal to address defendant’s testimony that alleged Det. Lynch fabricated the

oral statement. They were not used during the detective’s direct examination and the

State indicated it had not intended to use the notes at trial. Nonetheless, Crim.R. 16(B)(1)

requires that “[u]pon receipt of a written demand for discovery by the defendant, and

except as provided in division (C), (D), (E), (F), or (J) of this rule, the prosecuting attorney

shall provide copies or photographs, or permit counsel for the defendant to copy or

photograph, the following items related to the particular case indictment, information, or

complaint, and which are material to the preparation of a defense, or are intended for use

by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the

defendant, within the possession of, or reasonably available to the state, subject to the

provisions of this rule:
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{¶ 41} “(1) Any written or recorded statement by the defendant or a co-defendant,

including police summaries of such statements, and including grand jury testimony by

either the defendant or co-defendant * * *.”

{¶ 42} Det. Lynch’s obvious purpose in making the notations on the Scene

Magazine was to record defendant’s statement and, therefore, to the extent the notes were

reasonably available to the state, they should have been provided to the defense prior to

trial. However, from the record we glean that the notes were incorporated into Det.

Lynch’s supplemental report that was provided to the defense prior to trial and defendant

does not contend there are any inconsistencies between them. The court specifically

inquired as to whether the defense had the information prior to trial, which defense

counsel confirmed receipt of it approximately one week before trial. The defense was

aware of the alleged statement before trial. The notes produced during trial were offered

to rebut defendant’s accusations that Det. Lynch had lied about the oral statement by

corroborating Det. Lynch’s prior testimony with notes he made on a periodical bearing the

date of the alleged statement. There is no indication of any inconsistencies between the

notes and the report that incorporated them. To the extent a discovery violation

occurred, the court did inquire into the circumstances and there was no reason to delay the

bench trial with a continuance in this case.

{¶ 43} With respect to the admission of Shultz’s pretrial identification of defendant

as a gunman, counsel was not ineffective when he did not pursue a motion to suppress it.
 18
First, defendant’s reliance to the procedures set forth in R.C. 2933.83 is misplaced as those

provisions were not in effect when the police presented Shultz with the photo array.

{¶ 44} A court is not required to suppress an identification of a suspect unless the

confrontation was unnecessarily suggestive of the suspect’s guilt and the identification

was unreliable under all the circumstances. In re Henderson, Cuyahoga App. No. 79716,

2002-Ohio-483. Even if the pretrial identification procedure was impermissibly

suggestive, an in-court identification is permissible if the State establishes by clear and

convincing evidence that the witness had a reliable, independent basis for the

identification based on prior independent observations made at the scene of the crime.

State v. Tate, Cuyahoga App. No. 81577, 2003-Ohio-1835, citing In re Henderson,

Cuyahoga App. No. 79716, 2002-Ohio-483. No due process violation 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. Id. In determining whether an

identification is reliable, a court must consider (1) the witness’s opportunity to view the

suspect at the time of the incident, (2) the witness’s degree of attention, (3) the accuracy of

the witness’s prior description, (4) the witness’s certainty when identifying the suspect at

the time of the confrontation, and (5) the length of time elapsed between the crime and the

identification. State v. Waddy (1992), 63 Ohio St.3d 424, 439, 588 N.E.2d 819.

{¶ 45} In this case, Shultz was positive of his identification of defendant as the

person who held a gun to him. He saw his face and was certain. According to the
 19
record, the detective told him to look at an array which may or may not include the

suspect. Similarly, the detective presented Shultz with a second array that contained a

photo of co-defendant Stanley Smith, who was the alleged accomplice that stood in the

doorway and whom Shultz said he did not see as clearly. From these two arrays, Shultz

only identified defendant. He did not identify anyone from the second array.

{¶ 46} The cases that defendant relies on are distinguishable from the facts here

with respect to the victim’s ability to view the suspect. In this case, Shultz testified that

defendant stood over him with a gun in his apartment where a poker game had been in

progress. He had an unobstructed view, saw the gunman’s face, and was positive of his

identification. The fact that defendant does not match the height and weight description

supplied by Shultz was explained. Shultz stated that he could not be sure of the height

due to his position on the floor.

{¶ 47} There appears nothing “unduly suggestive” about defendant’s photograph.

Defendant’s photo does not stand out from the other photos that are contained in the array

that all have similar facial characteristics. The differences among the photographs in the

subject array are minor and do not make one photograph more suggestive than any of the

other photographs. There is no reason to conclude that the victim identified defendant’s

photo due to such subtleties. Shultz’s testimony illustrates his ample opportunity to view

the suspect and he did not waiver in his certainty. The reliability of Shultz’s identification

is further buttressed by the fact that Shultz did not identify the co-defendant who appeared
 20
in a contemporaneous array. Based on this record, defendant’s trial counsel was not

ineffective in failing to file a motion to suppress the pretrial identification of defendant.

Accordingly, defendant was not denied effective assistance of counsel on this basis.

{¶ 48} Defendant also maintains that his prior convictions were admitted in error.

Defendant stipulated to his prior felony conviction in 1996. When defendant took the

stand, he stated he was on probation for a “misdemeanor.” Defendant has failed to

establish that the admission of either conviction amounted to ineffective assistance of

counsel. He has not established a reasonable probability that the outcome of the trial

would have been any different if the evidence of his convictions were excluded.

{¶ 49} Evid.R. 609(B) provides:

{¶ 50} “Evidence of a conviction under this rule is not admissible if a period of

more than ten years has elapsed since the date of the conviction or of the release of the

witness from the confinement, or the termination of community control sanctions,

post-release control, or probation, shock probation, parole, or shock parole imposed for

that conviction, whichever is the later date, unless the court determines, in the interests of

justice, that the probative value of the conviction supported by specific facts and

circumstances substantially outweighs its prejudicial effect. However, evidence of a

conviction more than ten years old as calculated herein, is not admissible unless the

proponent gives to the adverse party sufficient advance written notice of intent to use such
 21
evidence to provide the adverse party with a fair opportunity to contest the use of such

evidence.” (Emphasis added.)

{¶ 51} Defendant testified that he served seven years for his 1996 felony conviction

resulting in a release date sometime in 2003. Accordingly, his conviction was not

inadmissible in this bench trial that took place in 2011. Evid.R. 609(B); see, also, State v.

Carter, Cuyahoga App. No. 84816, 2005-Ohio-2179. Moreover, convictions over ten

years are still admissible under certain circumstances. Id. Defendant, therefore, has not

established ineffective assistance of counsel based on his attorney’s decision not to object

to the admission of his 1996 conviction.

{¶ 52} The judge who placed defendant on community control for his misdemeanor

offense, was the same judge that conducted the bench trial and is presumed to have

disregarded any improper evidence. Guthmann, 175 Ohio St. 282, paragraph three of the

syllabus.

{¶ 53} Defendant’s final basis in support of this assigned error, is that his attorney

was not prepared for trial. Here, defendant reiterates the foregoing alleged deficiencies

and adds: (a) that his attorney failed to call Gary Larkins as a witness; (b) that his attorney

did not visit him enough in jail; and (c) should have obtained an expert on identification.

Although defendant claimed he was with Gary Larkins rather than speaking with

defendant in the afternoon prior to the robbery, there is no evidence in the record that Gary

Larkins would have corroborated defendant’s story. Secondly, defense counsel stated that
 22
he did visit defendant in jail. Finally, this court has found that trial counsel is not

ineffective when he or she chooses not to pursue the appointment of an expert witness on

identification. State v. Witherspoon, Cuyahoga App. No. 94475, 2011-Ohio-704, ¶ 40-41,

quoting, State v. Hayes, Cuyahoga App. No. 93785, 2010-Ohio-5234. Here, we do not

find that trial counsel’s performance was deficient in this regard particularly considering

Shultz’s certainty in his identification and the fact that this matter was tried to the bench

rather than a jury.

{¶ 54} The third assignment of error is overruled.

{¶ 55} “IV. Defendant was denied due process of law when he was

disproportionately sentenced to an eighteen (18) year sentence when a co-defendant,

Stanley Smith, after a trial was sentenced to ten (10) years for more convictions.”

{¶ 56} “V. Defendant was subjected to unconstitutional multiple convictions when

the court acknowledged that various counts would merge.”

{¶ 57} “VI. Defendant was denied due process of law when the court relied on its

own personal knowledge at sentencing.”

{¶ 58} “VII. Defendant was denied due process of law when he was sentenced to a

consecutive sentence without any findings.”

{¶ 59} “VIII. Defendant was subjected to unconstitutional multiple punishments

when the court failed to merge the various aggravated robbery counts of the indictment.”
 23
{¶ 60} “IX. Defendant was subjected to unconstitutional multiple punishments

when he was convicted and sentenced for aggravated burglary and aggravated robbery.”

{¶ 61} All of these assigned errors challenge defendant’s convictions and sentence

and will be addressed together.

{¶ 62} The Ohio Supreme Court set forth the standard for reviewing felony

sentencing in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. See,

also, State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Appellate courts

must apply a two-step approach when analyzing alleged error in a trial court’s sentencing.

“First, they must examine the sentencing court’s compliance with all applicable rules and

statutes in imposing the sentence to determine whether the sentence is clearly and

convincingly contrary to law. If this first prong is satisfied, the trial court’s decision shall

be reviewed under an abuse-of-discretion standard.” Id. at ¶ 4.

{¶ 63} Following briefing, this case was remanded to the trial court to correct the

sentencing entry. On remand, the trial court complied and by journal entry dated February

4, 2011, indicated that defendant had been found guilty of aggravated burglary with

firearm specifications, notice of prior conviction, repeat violent offender specification as

charged in count 1; guilty of aggravated robbery with the same specifications as charged in

counts 2, 3, 6, and 7; guilty of kidnapping with the same specifications as charged in

counts 8, 9, 12, and 13; guilty of theft, aggravated theft as charged in counts 14, 15, 18,

and 19; and guilty of having weapons while under disability as charged in count 20.
 24
Defendant was acquitted of counts 4, 5, 10, 11, 16, and 17. The State elected to pursue

sentencing on counts 1, 2, 3, 6, 7 and 20 and all other convictions were found to be allied

offenses of similar import and merged as follows: counts 8 and 14 merged with count 2;

counts 9 and 15 merged with count 3; counts 12 and 18 merged with count 6; counts 13

and 19 merged with count 7. The court imposed a single three year term for the firearm

specifications that were all merged for sentencing purposes, which was to run prior to and

consecutive to ten years on the base charge in each of counts 1, 2, 3, 6, and 7, all of which

run concurrently to each other. Defendant also received a consecutive five year prison

term for count 20. In total, defendant received an eighteen year sentence. The trial

court did not impose any enhanced penalty despite the finding of guilt on the repeat violent

specifications.

{¶ 64} Defendant’s eighteen year sentence is within the statutory range and is not

contrary to law.

{¶ 65} We now analyze the court’s findings and review the decision for an abuse of

discretion under the second prong of Kalish.

{¶ 66} A felony sentence should be proportionate to the severity of the offense

committed, so as not to “shock the sense of justice in the community.” State v. Chaffin

(1972), 30 Ohio St.2d 13, 17, 282 N.E.2d 46. See, also, R.C. 2929.11(B). A defendant

alleging disproportionality in felony sentencing has the burden of producing evidence to

“indicate that his sentence is directly disproportionate to sentences given to other offenders
 25
with similar records who have committed these offenses * * *.” State v. Breeden,

Cuyahoga App. No. 84663, 2005-Ohio-510, ¶81.

{¶ 67} Defendant contends that his sentence was disproportionate and inconsistent

with the sentences imposed on the co-defendants. The applicable analysis in assessing the

proportionality of a sentence is whether the sentence imposed is “consistent with sentences

imposed for similar crimes committed by similar offenders.” R.C. 2929.11(B) (emphasis

added). In State v. Berlingeri, this court addressed a similar proportionality argument

alleging inconsistency of sentences imposed among co-defendants and noted:

{¶ 68} “There is no requirement that co-defendants receive equal sentences. State v.

Wickham, 5th Dist. No. CT2006-0084, 2007-Ohio-1754, ¶29, citing State v. Lloyd, 11th

Dist. No. 2002-L-069, 2003-Ohio-6417, ¶21 and United States v. Frye (C.A.6, 1987), 831

F.2d 664, 667. ‘Each defendant is different and nothing prohibits a trial court from

imposing two different sentences upon individuals convicted of similar crimes.’ Wickham

at ¶29, citing State v. Aguirre, 4th Dist. No. 03CA5, 2003-Ohio-4909, at ¶50. When that

happens, ‘the task of the appellate court is to determine whether the sentence is so unusual

as to be outside the mainstream of local judicial practice. We bear in mind that although

offenses may be similar, there may be distinguishing factors that justify dissimilar

sentences.’ State v. Beasley, 8th Dist. No. 82884, 2004-Ohio-988, ¶24 (internal citation

omitted).”
 26
{¶ 69} The difference among the sentence defendant received for his convictions as

opposed to that imposed upon co-defendants Reba Smith and Powell are justified by the

fact that those individuals pled guilty to fewer offenses, admitted to their involvement, and

cooperated with the authorities. Further, defendant does not contend that any of the

co-defendants have a criminal record that is comparable to his own record.

{¶ 70} Instead, defendant contends that his sentence is disproportionate to the one

received by his co-defendant Stanley Smith for the sole reason that Stanley was convicted

of more offenses in this case but received a shorter sentence. Defendant does not provide

any similarities shared by these individuals such as whether or not Stanley was also on

probation at the time of this offense. The court considered defendant’s conduct, including

his involvement in another aggravated robbery incident and his juvenile record before it

imposed the sentence. Although defendant received ten years on the base counts of

aggravated robbery, the sentences are concurrent and therefore defendant did not receive

the maximum, consecutive sentence that was permissible under the law. The court

explained its rationale for the sentence that was imposed. Also, in reviewing the record,

defendant’s involvement in the offense was more extensive as compared to Stanley. For

example, all of the witnesses said defendant entered the apartment, ordered the victims to

floor and held a gun to Shultz and he was also accused of pepper spraying the men in the

kitchen; while at the same time, the other gunman (presumably Stanley Smith) stood in the

doorway. Defendant has not established that the trial court abused its discretion by
 27
imposing a greater sentence on him than the other co-defendants. Assignment of error IV

is overruled.

{¶ 71} Defendant also maintains that he was denied due process because the trial

court did not make the statutory findings set forth in R.C. 2929.14(E)(4) and R.C.

2929.41(A), which were excised by State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470. In support of his argument, defendant contends that the United States

Supreme Court’s decision in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172

L.Ed.2d 517, revived those portions of the statute and the trial court’s obligation to comply

with them prior to imposing consecutive sentences. The Ohio Supreme Court has rejected

this argument in State v. Hodge, 128 Ohio St.3d 311, 2010-Ohio-6320, 941 N.E.2d 768,

paragraphs one, two, and three of the syllabus (holding that trial court judges are not

obligated to engage in judicial factfinding prior to imposing consecutive sentences unless

the General Assembly enacts new legislation that requires it.) Assignment of error VII is

overruled.

{¶ 72} We do not find that the court abused its discretion by declining to order a

presentence investigation report or considering the fact that defendant was on probation to

the court. The trial court is not obligated to order a pre-sentence investigation report prior

to imposing a prison term. R.C. 2951.03. Defendant has not established that he was

denied a fair sentencing hearing and assignment of error VI is overruled.
 28
{¶ 73} Next we address defendant’s contention that he was improperly convicted of

multiple offenses. As set forth at the sentencing hearing and in the court journal entries,

the court determined that count 1 was not an allied offense nor was count 20. As for the

remaining counts, the State elected to pursue sentencing on counts 2, 3, 6, and 7; for which

the trial court imposed sentences. All other convictions were merged as set forth above.

{¶ 74} In Johnson, the Ohio Supreme Court established the proper analysis for

determining whether offenses qualify as allied offenses subject to merger pursuant to R.C.

2941.25.

{¶ 75} “In determining whether offenses are allied offenses of similar import under

R.C. 2941.25(A), the question is whether it is possible to commit one offense and commit

the other with the same conduct, not whether it is possible to commit one without

committing the other. * * * If the offenses correspond to such a degree that the conduct of

the defendant constituting commission of one offense constitutes commission of the other,

then the offenses are of similar import.

{¶ 76} “‘If the multiple offenses can be committed by the same conduct, then the

court must determine whether the offenses were committed by the same conduct, i.e., “a

single act, committed with a single state of mind.” Brown, 119 Ohio St.3d 447,

2008-Ohio-4569, 895 N.E.2d 149, at ¶50 (Lanzinger, J., dissenting).

{¶ 77} “If the answer to both questions is yes, then the offenses are allied offenses

of similar import and will be merged.
 29
{¶ 78} “Conversely, if the court determines that the commission of one offense will

never result in the commission of the other, or if the offenses are committed separately, or

if the defendant has separate animus for each offense, then, according to R.C. 2941.25(B),

the offenses will not merge.” Id. at ¶48-51.

{¶ 79} Because defendant’s robbery convictions represent offenses he separately

committed against multiple victims, they are not allied offenses of similar import. State v.

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. This is not similar to a fact pattern where

an individual fires a gun into a crowd of people, which arguably could create allied

offenses of similar import in the event the offender is charged with multiple counts of

felonious assault for each victim. See State v. Sutton, Cuyahoga App. No. 90172,

2011-Ohio-2249. The evidence presented in this trial established that defendant took

property from each identified victim by a threat of force and, therefore, acted with a

separate animus with respect to each victim. Accordingly, assignments of error V and

VIII are overruled.

{¶ 80} Defendant also contends that his convictions for aggravated burglary and

aggravated robbery are allied offenses that should have been merged. Defendant argues

that the convictions stemmed from a single event. However, once defendant entered the

apartment with an intent to commit a felony inside, the crime of burglary was complete.

When he proceeded to take property from the various individuals inside, while brandishing

a gun, he engaged in separate crimes of robbery. For that reason, these are not allied
 30
offenses of similar import and the court did not err by imposing separate sentences for

them. See State v. ONeil, Portage App. No. 2010-P-0041, 2011-Ohio-2202, ¶46-47,

quoting, State v. Frazier (1979), 58 Ohio St.2d 253, 389 N.E.2d 1118; see, also, State v.

Slagle (1992), 65 Ohio St.3d 597, 611 (“aggravated robbery and aggravated burglary are

not allied offenses of similar import where, as here, the offenses are committed separately

* * *.”) Assignment of error IX is overruled.

{¶ 81} “X. Defendant was denied due process of law when the court found

defendant guilty of a repeat violent offender specification.”

{¶ 82} Defendant was charged with repeat violent offender specifications on several

counts pursuant to R.C. 2941.149(A). R.C. 2929.01(C)(C) sets forth the definition of a

repeat violent offender, and includes a prior conviction for an attempted felony offense of

violence if the attempted offense is of the first or second degree.

{¶ 83} One who is found guilty of an RVO specification is subject to an enhanced

penalty beyond the maximum term provided for the base charge. In other words, a RVO

specification in this case subjected defendant to potential additional prison time of up to

another ten years beyond the ten years imposed for base offense, such as aggravated

robbery. R.C. 2929.14(D)(2)(a)(I).

{¶ 84} The parties stipulated to journal entries identified as State’s Exhibits 1 and 2,

which represent a plea journal entry and a sentencing journal entry from defendant’s 1996

conviction. However, there is a clear discrepancy on the face of the exhibits. The plea
 31
journal entry reflects that defendant entered a guilty plea to a lesser included offense of

robbery with violence specifications, which was a felony of the second degree. The

sentencing journal entry, however, indicates that defendant had entered a plea to attempted

robbery, which would have constituted a felony of the third degree. If defendant was

convicted of robbery, the evidence would establish the repeat violent offender

specification as defined by R.C. 2929.01(C)(C), but if he was convicted of attempted

robbery it would not. Any error in finding defendant guilty of the RVO specifications

was harmless because the trial court chose not to impose any enhanced penalty for them.

{¶ 85} Nonetheless, the State bears the burden of proving the specifications and, as

a result of the conflicting journal entries, the evidence in the record did not prove that

defendant had a prior conviction that would satisfy the RVO specification. The tenth

assignment of error is sustained to the extent that we vacate the trial court’s finding of

guilt as to the repeat violent offender specifications only but affirm defendant’s

convictions and sentence in all other respects.

It is ordered that appellee and appellant split 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 convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.
 32
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

JAMES J. SWEENEY, PRESIDING JUDGE

KENNETH A. ROCCO, J., and
EILEEN A. GALLAGHER, J., CONCUR