[Cite as State v. Floyd, 2017-Ohio-386.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104376




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                      ALLEN T. FLOYD
                                                    DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-602180-A

        BEFORE: Keough, A.J., Celebrezze, J., and Jones, J.

        RELEASED AND JOURNALIZED: February 2, 2017
ATTORNEY FOR APPELLANT

Andrew P. Baker
11510 Buckeye Road
Cleveland, Ohio 44104


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Kevin E. Bringman
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, A.J.:

          {¶1}   Defendant-appellant, Allen T. Floyd (“Floyd”), appeals from the trial

court’s judgment, rendered after a bench trial, finding him guilty of aggravated robbery

with accompanying firearm specifications, kidnapping, grand theft, attempted grand theft,

having weapons while under disability, and receiving stolen property, and sentencing him

to 12 years incarceration. Finding no merit to the appeal, we affirm.

                         I. Factual and Procedural Background

          {¶2} Floyd was charged in an 18-count indictment. The charges related to four

incidents that occurred over a three-week period in September 2015. Floyd pleaded not

guilty and waived his right to a jury trial, and the matter proceeded to a bench trial.

A.        The September 6, 2015 Incident

          {¶3} Judy Nogueras testified that at approximately 5 p.m. on September 6, 2015,

she and her boyfriend, Jose Hernandez, drove to the Giant Eagle store located on Lorain

Road in Cleveland.       Hernandez parked his 2009 Dodge Journey SUV close to the

entrance of the grocery store and left the car running with the doors unlocked as he went

inside.

          {¶4} Nogueras stayed in the SUV, waiting for Hernandez. Suddenly, a male

opened the passenger door to the SUV and told Nogueras to get out, but leave her purse

behind. When she told him that he could have the car but not her purse, he lifted his shirt

and put his hand on a gun in the waistband of his pants.
       {¶5} Nogueras testified that as this was happening, another male opened the

driver’s side door to the SUV and got in. She looked over, expecting to see Hernandez,

but saw an unknown male. Nogueras said that as she began yelling for help, Hernandez

ran up to the vehicle.

       {¶6} Hernandez testified that he ran to the vehicle and yelled at the male standing

by the open passenger door to leave.      He then saw a male sitting in the driver’s seat, so

he ran around to the driver’s side of the vehicle. When the male jumped out of the

vehicle, Hernandez got in the driver’s seat. Nogueras, meanwhile, grabbed the keys

from the ignition, got out of the vehicle, and ran into the store.

       {¶7} Hernandez saw the male who had been in the driver’s seat approaching him

again, so he got out of the car to confront him. Hernandez said that as he faced the male,

the male lifted up his shirt, a gesture Hernandez interpreted to mean that he had a gun

concealed under his shirt. Hernandez testified that he did not look down to see if there

was, in fact, a gun. The males then ran away.

       {¶8} Cleveland police officer Wilson Santos testified that he and his partner

responded to the scene, where he spoke with Nogueras, who gave a description of the

male in the driver’s seat.

       {¶9} Cleveland police detective Todd Stampiel testified that he subsequently

obtained surveillance video of the attempted carjacking from Giant Eagle. After posting

photographs of the males from the video on CrimeStoppers and social media, he received

an anonymous tip that one of the males was Floyd. Using that information, he generated
a photo array that included Floyd’s picture. Both Nogueras and Hernandez picked Floyd

out of the photo array and identified him as the male in the driver’s seat of the SUV on

September 6, 2015. Both Nogueras and Hernandez also identified Floyd in court as the

male who was in the driver’s seat of the SUV that day.

       {¶10} Floyd was charged with aggravated robbery in violation of R.C.

2911.01(A)(10); kidnapping in violation of R.C. 2905.01(A)(2); attempted grand theft in

violation of R.C. 2923.02/2913.02(A)(1); and having a weapon while under disability in

violation of R.C. 2923.13(A) regarding this incident (Counts 1-4).

B.     The September 28, 2015 Incident

       {¶11} Mary Cornely testified that on September 28, 2015, at approximately 9 p.m.,

she left Heck’s Café in Ohio City and walked to her car, a red Hyundai Tucson SUV,

which was parked on the corner next to restaurant. She testified that as she exited the

restaurant, she saw a young, short black woman standing on the sidewalk with her back to

the street. Cornely said that as she walked by the woman, she heard her say something.

Cornely turned around and saw that the woman was looking at a male, later identified as

Floyd, who was standing on the corner near Cornely’s vehicle.

       {¶12} Cornely testified that as she approached the driver’s side door of her vehicle,

the male jumped in front of her, pulled a gun out of his waistband, pointed it at her, and

told her to give him her keys. Cornely said that as she handed him her keys, she pulled

back on them, and the key fob came off in her hand. She then ran into the restaurant,

screaming, as the male tried to get in her car. Cornely said that she got a good look at the
male because she watched him through a window in the restaurant as she kept locking the

doors with the keyfob as he tried to get in her car. The male eventually got in the SUV,

however, and drove off.

       {¶13} Christopher Guthrie, a cook at Heck’s Café, testified that he was coming out

of the café when he heard the SUV “peel off.” He saw the young black woman run

down the street and then jump in the SUV, which had stopped briefly to pick her up.

Guthrie later positively identified the woman from a photo array.

       {¶14} Police responded to the scene, and Cornely gave a description of the robber.

 Cornely admitted at trial that she did not pick Floyd out of a photo array that was later

shown to her. She did, however, identify Floyd in court as the male who stole her car at

gunpoint, and stated that she was 100 percent certain that he was the male involved in the

carjacking on September 28, 2015. Cornely also identified the woman involved in the

carjacking from a photo array. Cleveland police detective John Lally testified at trial that

during his investigation of the incident, he learned that the woman, Tanashia Bradley, is

Floyd’s sister.

       {¶15} Floyd was charged with aggravated robbery in violation of R.C.

2911.01(A)(1); kidnapping in violation of R.C. 2905.01(A)(2); grand theft in violation of

R.C. 2913.02(A)(1); and having a weapon while under disability in violation of R.C.

2923.13(A)(2) with respect to this incident (Counts 5-8).

C.     The September 29, 2015 Incident Involving Hannah Moses
       {¶16} Hannah Moses, a college student, testified that around 4 p.m. on September

29, 2015, as she walked to a local market in Cleveland, she observed a young woman

sitting on a bench and a male standing by her. They both looked at her as she walked by.

 A few seconds later, as she turned the corner, the male ran up to her, pointed a gun at

her, backed her up against the wall, and told her to give him her wallet, which she did.

Moses said that there were several cancelled checks and receipts in her wallet. The male

then told her to run away.

       {¶17} Moses ran away, and then called 911. She gave a description of the

robber to the responding police officers. Case Western University police officer Scott

Delrosa testified that he subsequently obtained surveillance video from cameras located

around the area where the robbery occurred. He later prepared a photo array, but Moses

was unable to identify anyone from the array.

       {¶18} Floyd was charged with aggravated robbery in violation of R.C.

2911.01(A)(1); kidnapping in violation of R.C. 2905.01(A)(2); theft in violation of R.C.

2913.02(A)(1); and having a weapon while under disability in violation of R.C.

2923.13(A)(2) regarding this incident (Counts 9-12).

D.     The September 29, 2015 Incident Involving Deberra Schroeder

       {¶19} Captain Deberra Schroeder, acting battalion chief for the Cleveland Fire

Department and a former police officer, testified that at approximately 7 p.m. on

September 29, 2015, she was sitting in her 2015 Jeep Trailhawk in the parking lot of the
Giant Eagle located at 3050 W. 117th Street in Cleveland. The car was running and the

doors were unlocked.

       {¶20} Suddenly, a male opened the driver’s side door, pointed a gun at her face,

and said, “Get out of the car. I have a gun.”    Schroeder testified that another male was

at the passenger side of the vehicle but was unable to get in the vehicle. She testified

that she reached for her right side, as if she had a gun there, and lunged at the male on the

driver’s side, yelling “I have a gun too.” Both males then ran away. Schroeder chased

them in her vehicle but was unable to catch them.

       {¶21} Schroeder testified that the male who pointed the gun at her was wearing a

dark hoodie or jacket zipped all the way up, with the hood pulled tightly around his face.

She said that she saw only the male’s eyes, eyebrows, and chin. She said that later, when

she was shown a six-person photo array, she eliminated five of the males as the robber but

did not definitely identify Floyd from the array because he was looking down in the

photograph, and she felt she needed to see his eyes to make a definite identification. In

court, however, she positively identified Floyd as the male with the gun, and stated that

she was 100 percent certain of her identification.

       {¶22} Floyd was charged with aggravated robbery in violation of R.C.

2911.01(A)(1); kidnapping in violation of R.C. 2905.01(A)(2); attempted grand theft in

violation of R.C. 2923.02/2913.02(A)(1); and having a weapon while under a disability in

violation of R.C. 2923.13(A)(2) related to this incident (Counts 13-16).

E.     Floyd Is Apprehended
      {¶23} Cleveland police officer Michael Harper testified that on September 30,

2015, he saw a vehicle make a left turn without signaling. He ran the plates and learned

that the vehicle, a red Hyundai Tucson, was stolen. He followed the vehicle until it

turned into a parking lot, and then activated his overhead lights. The vehicle stopped,

and one male (the driver) and three females exited the vehicle and ran away.

      {¶24} After a short pursuit, officer Harper apprehended Floyd. He found a dark

jacket and the keys to the Hyundai Tucson, the same vehicle stolen from Cornely two

days earlier, next to Floyd. The officers also apprehended Tanashia Bradley, Floyd’s

sister, who ran from the vehicle when it stopped.        The police subsequently found

Moses’s cancelled checks and receipts in the glove compartment of the Hyundai Tucson.

      {¶25} Counts 17 and 18 of the indictment charged Floyd with receiving stolen

property in violation of R.C. 2913.51(A) in connection with this incident.

      {¶26} The trial judge found Floyd guilty of all counts as charged in the indictment

and sentenced him to 16 years incarceration. This appeal followed.

                                 II. Law and Analysis

A.    Jury Waiver

      {¶27} Immediately prior to trial, defense counsel informed the trial court that

Floyd wished to waive a jury trial. She told the judge that after speaking with Floyd “to

explain the pros and cons about a bench and jury trial,” she believed that “he has a full

understanding and is making an informed decision about this.” Floyd then signed the

jury waiver in open court. The following colloquy then took place:
       THE COURT: Mr. Floyd, have you done this knowingly, voluntarily, signed the
       jury waiver?

       THE DEFENDANT: Yes, sir.

       THE COURT: It’s your wish to proceed to trial to the judge?

       THE DEFENDANT: Yes.

       THE COURT: Okay. All right. We’ll get this filed and then we can start the
       trial.

       {¶28} In his first assignment of error, Floyd contends that his convictions must be

reversed because this colloquy was inadequate to properly advise him and determine that

he understood the implications of voluntarily relinquishing his right to a jury trial.

Floyd’s argument is without merit.

       {¶29} Ohio Crim.R. 23(A) allows a defendant to waive his right to a trial by jury in

serious offense cases provided that the waiver is made knowingly, intelligently, and

voluntarily, and in writing. See also R.C. 2945.05.

       {¶30} In State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277, 872 N.E.2d 279,

the Ohio Supreme Court found that to be valid, a jury waiver must meet five conditions.

It must be (1) in writing, (2) signed by the defendant, (3) filed, (4) made part of the

record, and (5) made in open court. “There is no requirement in Ohio for the trial court

to interrogate a defendant in order to determine whether he or she is fully apprised of the

right to a jury trial.” Id. at ¶ 21, citing State v. Jells, 53 Ohio St.3d 22, 25-26, 559 N.E.2d

464 (1990).    Moreover, a trial court is not required to inform a defendant of the

implications of waiver. “While it may be better practice for the trial judge to enumerate
all the possible implications of a waiver of a jury, there is no error in failing to do so.”

Lomax at ¶ 21, quoting Jells at 26.

       {¶31} There must, however, be some evidence in the record that the defendant

acknowledged the waiver to the trial court while in the presence of counsel. Lomax at ¶

42. As the Ohio Supreme Court stated in Lomax, “[w]e do not mandate magic words, or

a prolonged colloquy, but simply what Ohio law intends — that a defendant while in the

courtroom and in the presence of counsel, if any, acknowledges to the trial court that the

defendant wishes to waive the right to a jury trial.” Id. at ¶ 48.

       {¶32} That is exactly what happened in this case. Floyd signed the jury waiver in

open court. The trial court then asked Floyd whether he had waived his right to a jury

trial knowingly and voluntarily, and Floyd, in the presence of his counsel, responded

affirmatively. The trial court again questioned Floyd whether he desired to proceed to

trial by the bench, and Floyd again responded affirmatively.          We find that the trial

court’s questions of Floyd were sufficient to determine that he was knowingly and

voluntarily waiving his right to a jury trial. The first assignment of error is overruled.

B.     Sufficiency of the Evidence

       {¶33} In his second assignment of error, Floyd contends that his convictions for

the counts relating to the incidents involving Moses (Counts 9-12) and Schroeder (Counts

13-16) are not supported by sufficient evidence.

       {¶34} The test for sufficiency requires a determination of whether the prosecution

met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,
2009-Ohio-3598, ¶ 12. An appellate court’s function when reviewing the sufficiency of

the evidence to support a criminal conviction is to examine the evidence admitted at trial

to determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable doubt.

State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

       {¶35} With respect to Moses, Floyd contends that there was insufficient evidence

that he was the perpetrator of the offenses. He argues that the evidence was insufficient

because Moses did not identify him in court or in a photo array, and the fact that he was

in possession of her stolen property when he was apprehended, although sufficient to

support a conviction for receiving stolen property, does not justify a conviction relating to

the robbery.

       {¶36} It is well-settled under Ohio law that a defendant may be convicted solely on

the basis of circumstantial evidence. State v. Nicely, 39 Ohio St.3d 147, 151, 529 N.E.2d

1236 (1988). “Circumstantial evidence is not less probative than direct evidence, and, in

some instances, is even more reliable.” Id.

       {¶37} It is also well settled in Ohio that “the unexplained possession by a

defendant of recently stolen property may give rise to a permissive inference from which

a jury may conclude, beyond a reasonable doubt, that the accused is guilty of the theft.”

State v. McAllister, 53 Ohio App.2d 176, 180, 372 N.E.2d 1341 (8th Dist.1977), citing
Methard v. State, 19 Ohio St. 363 (1869); State v. Brennan, 85 Ohio App.175, 88 N.E.2d

281 (9th Dist.1949); Cofield v. State, 14 Law Abs. 29 (1933). “Such an inference is

particularly significant when the defendant offers no explanation for his possession of the

stolen goods.” State v. Brown, 10th Dist. Franklin No. 05AP-601, 2006-Ohio-2307, ¶

11, citing McAllister, supra.

       {¶38} The evidence established that when Floyd was arrested, he was driving the

vehicle that had been stolen from Mary Cornely only two days earlier. In the glove

compartment of the stolen vehicle, the police found cancelled checks and receipts

belonging to Hannah Moses, who had been robbed at gunpoint only the day before.

Although she did not identify Floyd from a photo array or in court, Moses’s description of

the male who robbed her at gunpoint matched the description given to the police by

Nogueras, Hernandez, and Cornely, who all positively identified Floyd as the robber.

       {¶39} The evidence also established that like when Cornely was robbed,

immediately before she was robbed, Moses observed a young black woman with the male

who robbed her. Floyd’s sister, Tanashia Bradley, who was positively identified by

Cornely and Guthrie as the woman with Floyd when Cornely’s vehicle was stolen outside

Heck’s Café, was apprehended fleeing from the stolen vehicle on September 30, 2015.

And, significantly, Floyd gave no explanation for his possession of the stolen vehicle and

Moses’s belongings to either the police or the factfinder at trial. Viewing this evidence

in a light most favorable to the prosecution, it is apparent that the state produced
sufficient evidence from which the factfinder could find, beyond a reasonable doubt, that

Floyd was the male who robbed Moses at gunpoint on September 29, 2015.

         {¶40} With respect to the incident involving Schroeder, Floyd contends that the

evidence was insufficient to establish that the male who jerked open the door of

Schroeder’s vehicle, pointed a gun at her, and told her to get out of the car intended to rob

her.1 We disagree.

         {¶41} Criminal intent may be proved by circumstantial evidence.             State v.

Heinish, 8th Dist. Cuyahoga No. 54427, 1988 Ohio App. LEXIS 3644, *35 (Sept. 8,

1988).       Schroeder testified that the male brandished a gun and told her to get out of the

car. She testified further that she interpreted the actions and words to mean that the male

intended to steal her vehicle. Although Floyd did not specifically tell Schroeder that he

wanted to steal her vehicle, when viewed in a light most favorable to the prosecution, this

evidence is sufficient to convince a reasonable factfinder that Floyd’s intent, as in the

incidents involving Nogueras and Cornely, was to steal Schroeder’s vehicle. The second

assignment of error is therefore overruled.

C.       Manifest Weight of the Evidence

         {¶42} In his third assignment of error, Floyd contends that his convictions should

be reversed as against the manifest weight of the evidence.



       Under R.C. 2911.01(A)(1), regarding aggravated robbery, “[n]o person, in
         1

attempting or committing a theft offense * * * shall * * * have a deadly weapon on
or about the offender’s person or under the offender’s control and either display the
weapon, brandish it, indicate that the offender possesses it, or use it[.]”
       {¶43} In contrast to a sufficiency argument, a manifest weight challenge questions

whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No.

92266, 2009-Ohio-3598 at ¶ 12.         A reviewing court weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines whether in

resolving conflicts in the evidence, the jury clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered. Thompkins, 78 Ohio St.3d at 388, 678 N.E.2d 541. A conviction should be

reversed as against the manifest weight of the evidence only in the most “exceptional case

in which the evidence weighs heavily against the conviction.” Id.

       {¶44} Initially, we note that any argument regarding Counts 1-4, the incident

involving Nogueras and Hernandez, is without merit because defense counsel conceded at

trial that “there’s no question” Floyd was involved in this incident. (Tr. 613.)

       {¶45} With respect to the other three incidents, we do not find this to be the

exceptional case where the evidence weighs heavily against the conviction. All four

victims gave similar descriptions of the male perpetrator to the police. Although Moses

was unable to identify Floyd, Nogueras, Cornely, and Schroeder positively identified him

as the perpetrator, and were 100 percent certain of their identification. When Floyd was

apprehended after fleeing, he was driving Cornely’s vehicle that had been stolen two days

before, and items from Moses’s wallet were found in the glove compartment of the stolen

vehicle. In light of this evidence, the trial court, as factfinder, did not lose its way or

create a miscarriage of justice in convicting Floyd.
       {¶46} Nevertheless, Floyd argues that even if his convictions on the underlying

charges are not against the manifest weight of the evidence, his convictions on the firearm

specifications and the weapon under disability charges are against the manifest weight of

the evidence because the operability of the alleged firearm was never established. In

support of his argument, he relies on the fact that no firearm was ever recovered, and

there was no evidence regarding the test firing of any weapon.

       {¶47} R.C. 2941.145 requires proof beyond a reasonable doubt that “the offender

had a firearm on or about the offender’s person or under the offender’s control while

committing the offense and displayed the firearm, brandished the firearm, indicated that

the offender possessed the firearm, or used it to facilitate the offense.”    Under R.C.

2929.13(A)(2), “[n]o person shall knowingly acquire, have, carry, or use any firearm or

dangerous ordnance if * * * the person * * * has been adjudicated a delinquent child for

the commission of an offense that, if committed by an adult, would have been a felony

offense of violence.”

       {¶48} A “firearm” is “any deadly weapon capable of expelling or propelling one or

more projectiles by the action of an explosive or combustible propellant.”            R.C.

2923.11(B)(1). It includes an unloaded firearm, and any firearm that is inoperable but

that can readily be rendered operable. Id.

       {¶49} In Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541, paragraph one of the

syllabus, the Ohio Supreme Court elaborated on the requisite proof to sustain a firearm

specification:
       A firearm enhancement specification can be proven beyond a reasonable
       doubt by circumstantial evidence. In determining whether an individual
       was in possession of a firearm and whether the firearm was operable or
       capable of being readily rendered operable at the time of the offense, the
       trier of fact may consider all relevant facts and circumstances surrounding
       the crime, which include any implicit threat made by the individual in
       control of the firearm.

       {¶50} Thus, with respect to operability of a firearm in cases where no shots are

fired and the firearm is not recovered, circumstantial evidence, such as the representations

and actions of the gun operator, are of crucial importance. State v. Fulton, 8th Dist.

Cuyahoga No. 96156, 2011-Ohio-4259, ¶ 34, citing State v. Ware, 9th Dist. Summit No.

22919, 2006-Ohio-2693, ¶ 13. The implicit threat inherent in brandishing a firearm

supports an inference that the firearm was operable. Id.

       {¶51} Here, Hernandez testified that Floyd pulled up his shirt, a gesture that

Hernandez interpreted to mean that he had a gun under his shirt. Cornely testified that

Floyd pointed a gun at her as he told her to give him the keys to her SUV. Moses

testified that Floyd pointed a gun at her, pushed her up against a wall, and told her to give

him her wallet. And Schroeder testified that Floyd pointed a gun at her face and told her

to get out of her car because he had a gun. The operability of Floyd’s gun can be

inferred from these facts and circumstances. Floyd showed the gun to all four victims as

he was trying to rob them, supporting an inference that it was operable. Thus, Floyd’s

argument that his convictions on the firearm specifications and having weapons while

under disability are against the manifest weight of the evidence is without merit. The

third assignment of error is overruled.
D.     Evidence Regarding Floyd’s Juvenile History

       {¶52} Prior to trial, the prosecutor and defense counsel stipulated to the existence

of juvenile offenses that would establish a disability. During trial, Detective Stampiel

testified that during the course of his investigation, he learned that Floyd had been found

delinquent in juvenile court for attempted murder.

       {¶53} Floyd contends on appeal that the state then elicited further testimony from

Detective Stampiel that the facts relating to Floyd’s juvenile conviction were similar to

the allegations in this case; i.e., that he targeted females driving SUVs. Floyd argues that

the admission of this evidence was improper under Evid.R. 404(B) because the state did

not offer any exceptions within the rule that would allow for the admission of “prior bad

acts” testimony.

       {¶54} Floyd’s argument is without merit because Detective Stampiel’s testimony

that Floyd targeted women in SUVs related solely to this case; it was not in reference to

Floyd’s juvenile conviction. The record reflects the following colloquy:

       THE PROSECUTOR: Detective, what similarities did you learn between
       the incidents of September 6th, September 28th, September — and the two
       incidents on September 29th?

       DEFENSE COUNSEL: Objection.

       THE COURT: Overruled.

       ANSWER: The similarities were that females by themselves were always
       targeted. And SUVs especially were targeted.

       THE PROSECUTOR: And either the September 6th or the September 29th
       incident —
       DEFENSE COUNSEL: Objection.

       THE COURT: Finish the question first.

       THE PROSECUTOR: — did you ever learn whether or not the suspects
       entered Giant Eagle?

       THE COURT: Overruled.

       ANSWER: They were in the vestibule where you see them on the screen. I
       don’t know that they actually ever went into the store.

       THE PROSECUTOR: Okay. All right. Thank you Detective. Nothing
       further, Your Honor.

       {¶55} As is apparent from the colloquy, the state did not ask detective Stampiel to

compare Floyd’s juvenile offenses with the offenses in this case. The state simply asked

the detective whether he learned of any similarities between the incidents involved in this

case. Accordingly, Floyd’s argument regarding the improper admission of “prior bad

acts” evidence is without merit.

       {¶56} In light of Floyd’s stipulation to his juvenile convictions, the trial court

erred, however, in allowing the state to elicit testimony from Detective Stampiel that

Floyd had been convicted in juvenile court of attempted murder, and in admitting the

journal entries of Floyd’s juvenile convictions.

       {¶57} Floyd was indicted on four counts of having a weapon while under disability

in violation of R.C. 2923.13(A)(2). Prior to trial, he stipulated to the existence of

juvenile offenses that would establish a disability. In State v. Creech, Slip Opinion No.

2016-Ohio-8440, the Ohio Supreme Court held that in a case alleging a violation of R.C.

2923.13,
       when the name or nature of a prior conviction or indictment raises the risk
       of a jury verdict influenced by improper considerations, a trial court abuses
       its discretion when it refuses a defendant’s offer to stipulate to the fact of
       the prior conviction or indictment and instead admits into evidence the full
       record of the prior judgment or indictment when the sole purpose of the
       evidence is to prove the element of the defendant’s prior conviction or
       indictment.

Id. at ¶ 40.

       {¶58} Here, the trial court accepted Floyd’s stipulation to his juvenile offenses that

would establish a disability under R.C. 2923.13, but then allowed testimony regarding the

nature of Floyd’s juvenile offenses and the admission of the journal entries regarding

those offenses.   It was an abuse of discretion to do so because Floyd’s stipulation

established the fact of his legal status; i.e. that he had previously been convicted of a

crime that would prohibit him from possessing a gun under R.C. 2923.13. The evidence

offered by the state that Floyd had previously been convicted of attempted murder with a

firearm specification created a risk of unfair prejudice that the factfinder would decide

this case, which involved other offenses with a gun, “through a sequence of bad character

reasoning.” Id. at ¶ 36.

       {¶59} Accordingly, because Floyd’s stipulation was available, the court erred in

admitting the prior judgment when the sole purpose of the evidence was to prove the

element of Floyd’s prior conviction.2



       2
        The Creech decision was announced on December 29, 2016, so the trial court
did not have the benefit of the decision at trial. Nevertheless, “‘the general rule in
Ohio is that a decision will be applied retroactively unless retroactive application
interferes with contract rights or vested rights under the prior law. However, a
court also has discretion to impose its decision only prospectively after considering
       {¶60} Floyd did not object to Detective Stampiel’s testimony at trial nor to the

admission of the journal entries of his prior convictions, and accordingly, we consider

whether the trial court’s error was plain error.       “Plain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of the

court.” Crim.R. 52(B). Under the plain-error standard, an alleged error is not a plain

error unless the error clearly changed the outcome of the trial. State v. Hill, 92 Ohio

St.3d 191, 203, 749 N.E.2d 274 (2001), citing State v. Long, 53 Ohio St.2d 91, 372

N.E.2d 804 (1978), paragraph two of the syllabus. A reviewing court must examine the

error in light of all the evidence properly admitted at trial and determine whether the

factfinder would have convicted the defendant even if the error had not occurred. State

v. Slagle, 65 Ohio St.3d 597, 605, 605 N.E.2d 916 (1992).

       {¶61} We find no plain error.      The evidence against Floyd in this case was

overwhelming, and it is apparent that he would have been convicted of aggravated

robbery, kidnapping, grand theft, and receiving stolen property even had the evidence

relating to his juvenile convictions not been admitted at trial. Moreover, the case was

tried to the bench, and appellate courts presume that a trial court only considered relevant

and admissible evidence in a bench trial. State v. Chandler, 8th Dist. Cuyahoga No.


whether retroactive application would fail to promote the rule within the decision
and/or cause inequity.’”      Siller v. State, 8th Dist. Cuyahoga No. 100839,
2014-Ohio-2777, ¶ 22, quoting Dicenzo v. A-Best Prods.Co., Inc., 120 Ohio St.3d 149,
2008-Ohio-5327, 897 N.E.2d 132, ¶ 14. Floyd had no contract or vested rights in
prior law that are implicated by the application of Creech, nor does the retroactive
application of Creech fail to promote the rule announced in the decision or cause
inequity. Accordingly, we apply the rule announced in Creech to this case.
81817, 2003-Ohio-6037, ¶ 17. Accordingly, we cannot conclude that the error clearly

affected the outcome of the trial. The fourth assignment of error is overruled.

E.     Ineffective Assistance of Counsel

       {¶62} Last, Floyd contends that he was denied effective assistance of counsel

because defense counsel did not move for separate trials for each of the incidents.

       {¶63} In order to establish a claim of ineffective assistance of counsel, a criminal

defendant must demonstrate that counsel’s performance was deficient and that the

deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989). Prejudice is demonstrated when the defendant proves that, but for counsel’s

actions, there is a reasonable probability that the result of the proceedings would have

been different. Strickland at 694.

       {¶64} Crim.R. 8 allows for the joinder of two or more offenses when the offenses

“are of the same or similar character, or are based on the same act or transaction, or are

based on two or more acts or transactions connected together or constituting parts of a

common scheme or plan, or are part of a course of criminal conduct.” Generally, the law

favors joining multiple offenses in a single trial under Crim.R. 8(A) if the offenses

charged are of the same or similar character. State v. Lott, 51 Ohio St.3d 160, 163, 555

N.E.2d 293 (1990). Joinder and the avoidance of multiple trials is favored for many

reasons, among which are conserving time and expense, diminishing the inconvenience to
witnesses, and minimizing the possibility of incongruous results in successive trials

before different juries. State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981).

       {¶65} We find no ineffective assistance of counsel because Floyd suffered no

prejudice as a result of the joinder. Prejudice is not demonstrated if one offense would

have been admissible as “other acts” evidence under Evid.R. 404(B) or if the evidence of

each crime joined at trial is simple and direct. Lott at 163. As long as it is used for

purposes other than proving that the accused acted in conformity with a particular

character trait. Evid.R. 404(B) permits the admission of “other acts” evidence if it is

related to and shares common features with the crime in question. State v. Lowe, 69

Ohio St.3d 527, 634 N.E.2d 616, (1994), paragraph one of the syllabus.

       {¶66} The incidents at issue in this case shared common features: they were

committed with a gun; they involved the same type of victim (younger women who were

alone); and were committed for the same purpose (to acquire an SUV or other property

with monetary value).     Accordingly, the evidence of each crime would have been

admissible as “other acts” evidence in separate trials. Moreover, the evidence relating

to each event was simple and direct and capable of being segregated. There was no

indication that the trier of fact was not able to discern the evidence on each charge, and

we find nothing to indicate that the factfinder was influenced by the cumulative evidence

against Floyd.    Accordingly, the charges were properly joined for trial.       Defense

counsel’s failure to move to sever did not prejudice Floyd, and therefore, was not

ineffective assistance of counsel. The fifth assignment of error is overruled.
      {¶67} Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

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

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR
