State v. Smith , 2011 Ohio 3051 ( 2011 )


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  • [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
    2
    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.
    3
    {¶ 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
    4
    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.
    5
    {¶ 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
    6
    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
    7
    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
    8
    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
    9
    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.
    10
    {¶ 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.
    11
    {¶ 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
    12
    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
    13
    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:
    17
    {¶ 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