[Cite as State v. Rios, 2011-Ohio-3053.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95364


                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                           JORGE RIOS
                                                     DEFENDANT-APPELLANT



                                           JUDGMENT:
                                            AFFIRMED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-525322

        BEFORE:            Rocco, J., Blackmon, P.J., and S. Gallagher

        RELEASED AND JOURNALIZED: June 23, 2011

                                               -i-

ATTORNEY FOR APPELLANT
                                     2


Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY:    Brian M. McDonough
      Sanjeev Bhasker
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




KENNETH A. ROCCO, J.:

      {¶ 1} Defendant-appellant Jorge Rios appeals from his convictions for

aggravated murder, aggravated burglary and aggravated robbery with

firearm specifications, and kidnapping, and from the sentences imposed for

those convictions.

      {¶ 2} Rios presents four assignments of error.         He argues his

convictions are unsupported by sufficient evidence and the manifest weight of

the evidence. He also argues his trial counsel rendered ineffective assistance

by failing to file a motion to suppress his statements. Finally, Rios argues
                                         3

the trial court improperly sentenced him on both the counts of aggravated

murder and aggravated burglary; he contends these were allied offenses.

      {¶ 3} Upon a review of the record, this court finds his assignments of

error all lack merit.      Consequently, Rios’s convictions and sentences are

affirmed.

      {¶ 4} Rios’s convictions result from an incident that occurred on the

morning of August 21, 2008.           According to the testimony of the state’s

witnesses, the incident unfolded in the following manner.

      {¶ 5} Colleen Schade “grew up” 1 in the W. 130th Street and Bellaire

Avenue area of Cleveland with Samuel Reed, Jr., whose nickname was “Boy.”

 She maintained her friendship with Reed into her adulthood.           On the

afternoon of August 20, 2008, Reed called her to ask her if she would drive his

vehicle, a tan-colored Chevrolet Tahoe, for him and to take him to an

appointment; he was not supposed to be driving, since he did not have a

license. Schade obliged.

      {¶ 6} That evening, Reed called Schade again, this time to invite her

out for “a drink.” When Reed arrived at Schade’s house, she noticed that he

wore bright clothing, viz., a yellow T-shirt and a hat with a blue letter “R”

stitched on the crown.       Reed also brought another man with him, whom


      1Quotes   indicate testimony provided at trial.
                                       4

Schade later identified as Rios. Once again, Reed asked Schade to drive the

Tahoe.

     {¶ 7} The three of them stopped at a bar on Puritas Avenue, then

proceeded to another bar on Brookpark Road, and, finally, to one near W.

117th Street and Madison Avenue in Lakewood, where they remained until it

closed at approximately 2:00 a.m. During this time, Schade observed that

Rios asked Reed for his cell phone and used it often.

     {¶ 8} After the bar closed, Reed directed Schade first to stop at a filling

station, where he purchased a bottle of liquor, then to a house located on

Archwood Avenue. Schade waited in the driver’s seat while Reed and Rios

exited the Tahoe to speak with another man, who eventually entered the

vehicle with the other two. Reed then used his cell phone to call someone.

After this conversation, Reed directed Schade to a house on Bernard Avenue,

near W. 105th Street (the “Bernard house”).

     {¶ 9} Reed told Schade to park on the street.     As she obeyed, she saw a

man and a woman emerge from a Jeep parked in front of the Bernard house.

Schade recognized the woman, Michelle O’Brien, as someone with whom she

had worked a few years previously.2



     2Both   women admitted they met while working at a “strip bar.”
                                      5

     {¶ 10} At that time, Schade, Reed, Rios, and the other man joined

O’Brien and her companion and proceeded indoors.          Schade discovered

O’Brien’s companion was David Slaypak. Although O’Brien and Slaypak had

been living at the Bernard house for a time, they were planning on moving.

     {¶ 11} Schade and O’Brien continued their conversation in the kitchen

while the men entered the master bedroom. O’Brien assumed Slaypak was

selling some powdered cocaine to them. At one point, Slaypak came out to

obtain some beers from the refrigerator, and the man that Schade did not

know returned to the kitchen and sat down at the table.

     {¶ 12} After approximately twenty minutes, the other men rejoined the

women. Reed’s group was preparing to leave when Reed noticed the packed

boxes. Slaypak explained the plan to move, so Reed asked whether he could

buy some of the furniture.    Reed also asked if Slaypak could deliver his

purchases to his home; O’Brien heard Reed say where he lived.         Slaypak

apparently was amenable; he and Reed moved a coffee table in which Reed

was interested from the lawn to the porch before Schade drove away.

     {¶ 13} Upon Schade’s arrival at her home at approximately 3:30 a.m.,

Reed asked her if he could use her car, since the Tahoe’s temporary tag had

expired at midnight. Schade agreed. Reed drove off with Rios and the other

man in Schade’s silver Ford Taurus.
                                     6

      {¶ 14} According to Reed’s cell phone records, Reed received a call at

3:21 a.m. At that time, he was in the area of Schade’s home. By 4:45 a.m.,

Reed’s cell phone records indicate he had returned to the area of the Bernard

house, where he remained until at least 5:13 a.m.

      {¶ 15} Reed and Rios made a second visit of the night to the Bernard

house; shortly thereafter, O’Brien noticed that some money she earlier had

placed on the kitchen table was gone. Slaypak and O’Brien believed someone

in Reed’s group had taken it.    Slaypak told O’Brien to call Reed; Reed’s

number was listed on his phone’s log of contacts. Slaypak then went to bed.

      {¶ 16} Angered by the missing money, O’Brien made seven separate

calls to Reed, demanding he return it. She waited on the front porch for his

arrival.

      {¶ 17} Reed returned to the Bernard house driving a silver-colored car,

parking it on the street a few houses away.          Rios and another man

accompanied him. When O’Brien saw them approaching, she went to inform

Slaypak of their arrival, then came back into the kitchen to see the three men

coming inside.

      {¶ 18} Rios walked past O’Brien to the bedroom, turned on the light, and

told Slaypak to come out.     As Slaypak complied, O’Brien went into the

bedroom, intending to let Slaypak handle the situation. However, when she
                                       7

heard Slaypak say, “Please, no. Don’t do this,” she ran back to the kitchen to

find Slaypak “backed into a corner” surrounded by the three men.              The

unknown man stood in front of Slaypak “with a gun pointed at his chest.”

      {¶ 19} All three of the men demanded to know where Slaypak kept his

money. Reed then “punched him in his face and he kind of buckled, and

[Rios] started to hit him” as well. Slaypak fell to the floor.

      {¶ 20} The man holding the gun turned to O’Brien, pointed it at her, and

ordered her to find the money. O’Brien saw the other two men continue to

strike Slaypak, so she attempted to comply; while the unknown man kept the

gun trained on her, she ran into the bedroom, opening drawers and turning

the mattress, but she was unable to locate the place Slaypak hid his cash.

      {¶ 21} Reed began hitting Slaypak with a saucepan.         Followed by Rios,

who was “flexing” as if to hit her, too, O’Brien ran past the kitchen into the

dining room, searched her bookshelf, then proceeded to the living room. She

heard Slaypak scream that the neighbors would hear, heard the sound of

glass breaking in the kitchen window, and heard Slaypak cry loudly for help.

      {¶ 22} O’Brien turned to see “the guy with the gun and [Reed] come

through [her] kitchen door, * * * yelling, ‘Give us the money.’ * * * [Slaypak]

got a foot or two into the dining room” before Reed hit him again. At that

point, Slaypak told them that the money was in the couch cushions.
                                       8

      {¶ 23} O’Brien was standing behind the couch and near the front door.

Rios bent to lift the couch cushions; O’Brien took the opportunity of his

inattention to her to flee the house. Once outside, she ran to a neighbor’s

house; she heard gunshots and Slaypak’s screams as she pounded on the

neighbor’s door.

      {¶ 24} Other neighbors also heard the shots and screams; some of them

looked out their windows. Subsequently, they were able to provide the police

with information about at least three men running to a silver-colored car

parked on the street. One man wore a distinctive hat and a yellow T-shirt.

Another called out, “Hurry up, Boy.”

      {¶ 25} The police received several 9-1-1 calls beginning at 5:10 a.m., all

within moments of the shooting. By the time the officers and the emergency

service arrived at the Bernard house, however, Slaypak was dead on the front

porch; he had been shot twice in his torso.

      {¶ 26} O’Brien returned to the Bernard house to provide information

about the assailants.    Detectives used her information; first they located

Schade. After Schade described her experiences of August 20 through 21,

2008, Reed was apprehended for his part in Slaypak’s murder.

      {¶ 27} The record reflects Reed’s case proceeded to trial and to his

convictions on several counts, including aggravated murder. On April 27,
                                      9

2009, at Reed’s sentencing hearing, he produced an affidavit in mitigation

from Rios. Rios averred in this document that he had been a witness during

the incident that led to Reed’s convictions.

      {¶ 28} Based upon this new information, Det. Thomas Armelli, the

assigned investigating officer, interviewed Rios.     Despite being presented

with the opportunity to consult with his attorney before making any

statements, Rios proceeded to provide one without counsel’s presence. Rios

initially claimed he did not know anything about the murder, then claimed he

remained in the silver car during the incident, then claimed he tried to

prevent Reed from committing the crimes.

      {¶ 29} Armelli also placed Rios into separate physical “line-ups” for

O’Brien and Schade.     Both women identified Rios as one of the men who

accompanied Reed on the night of the incident.

      {¶ 30} Eventually, Rios was indicted in this case, charged on eleven

counts. Counts 1, 2, and 3 charged him with aggravated murder, Counts 4,

5, and 6 charged him with aggravated burglary, Counts 7, 8, and 9 charged

him with aggravated robbery, and Counts 10 and 11 charged him with

kidnapping.    Although the first three counts originally contained felony

murder specifications, the state later dismissed those specifications. Each

count contained a three-year firearm specification.
                                     10

     {¶ 31} Rios’s case proceeded to a jury trial.   The jury acquitted Rios on

Count 1, but found him guilty of two counts of aggravated murder, and also

guilty of the remaining counts of aggravated burglary, aggravated robbery,

and kidnapping with firearm specifications.

     {¶ 32} The trial court thereafter sentenced Rios to a prison term that

totaled twenty-six years to life, i.e., the court merged all the firearm

specifications, thus imposing a three-year term to be served prior to and

consecutive with the following: consecutive terms of twenty years on Count 2,

three years on Count 4, and three years on Count 6, and concurrent

three-year terms on Counts 7 and 9. The court merged Count 3 into Count 2,

Count 5 into Count 4, Count 8 into Count 7, and Counts 10 and 11 into

Counts 4 and 6.

     {¶ 33} Rios appeals from his convictions and sentences with four

assignments of error.

     {¶ 34} “I.    The trial court erred in denying Appellant’s motion

for acquittal as to the charges when the state failed to present

sufficient evidence against Appellant.

     {¶ 35} “II.    Appellant’s convictions are against the manifest

weight of the evidence.
                                    11

      {¶ 36} “III.   Appellant was denied effective assistance of counsel

as guaranteed by Section 10, Article I, of the Ohio Constitution and

the Sixth and Fourteenth Amendments when defense counsel by not

filing or requesting a a [sic] hearing on a Motion to Suppress

statements.

      {¶ 37} “IV.    The trial court erred by ordering convictions and a

consecutive sentence for separate counts of aggravated murder and

aggravated burglary because the offenses are allied offenses

pursuant to R.C. 2941.25 and they are part of the same transaction

under R.C. 2929.14.”

      {¶ 38} Rios argues generally in his first assignment of error that the

trial court erred when it did not grant his Crim.R. 29 motion for acquittal.

Without specifically citing any elements of the crimes for which he was

convicted, he simply claims the state presented insufficient evidence to prove

his guilt. This court disagrees.

      {¶ 39} Under Crim.R. 29(A), a trial court “shall not order an entry of

acquittal if the evidence is such that reasonable minds can reach different

conclusions as to whether each material element of a crime has been proven

beyond a reasonable doubt.” State v. Bridgeman (1978), 55 Ohio St.2d 261,

381 N.E.2d 184, syllabus.     “In essence, sufficiency is a test of adequacy.
                                     12

Whether the evidence is legally sufficient to sustain a verdict is a question of

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

      {¶ 40} In determining whether a conviction is supported by sufficient

evidence, the appellate court must 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.        State v. Jenks

(1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.

The evidence must be viewed in a light most favorable to the prosecution. Id.

at 273.

      {¶ 41} Rios asserts the testimony lacked credibility and      established

“reasonable doubt” as to his “culpability.”     This court reminds him that

claims regarding credibility are not proper under a review for evidentiary

sufficiency.   State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767

N.E.2d 216, ¶79.

      {¶ 42} When viewed in a light most favorable to the prosecution, the

evidence in this case demonstrated Rios’s complicity in the aggravated

murder, aggravated burglary, aggravated robbery, and kidnapping of the

victims.   Rios accompanied Reed to the Bernard house, where they both

became aware Slaypak was peddling drugs.          After getting Schade home,

Reed, Rios, and the other man borrowed her car, went back to the Bernard
                                       13

house a second time, and took O’Brien’s money that lay on the kitchen table

before they left.    Then, upon receiving angry calls from O’Brien about the

money, the three men returned to the Bernard house with the intent to obtain

more.

        {¶ 43} O’Brien’s testimony proved Rios took an active part in each

offense. O’Brien saw Rios walk right into the house and into the bedroom to

order Slaypak to get up. She saw one man pointing a gun at Slaypak as all

of the men, including Rios, surrounded him demanding money. She saw Rios

hitting Slaypak.       O’Brien further indicated Rios followed her in an

intimidating manner during her search for Slaypak’s money.

        {¶ 44} In light of the foregoing, the trial court correctly denied Rios’s

motion for acquittal of the charges. State v. Pettway, Cuyahoga App. No.

91716, 2009-Ohio-4544; State v. James (Sept. 24, 1998), Cuyahoga App. No.

72922. Rios’s first assignment of error, accordingly, is overruled.

        {¶ 45} In his second assignment of error, Rios argues his convictions are

not supported by the manifest weight of the evidence. He asserts the jury

lost its way in determining his guilt, because evidence of his intent is lacking.

 A review of the record fails to support his argument.

        {¶ 46} With respect to an appellate court’s function in reviewing the

weight of the evidence, this court is required to consider the entire record and
                                     14

determine whether in resolving any 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 at 387,

citing State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. This

court must remain mindful, however, that the weight of the evidence and the

credibility of the witnesses are matters primarily for the jury to consider.

State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of

the syllabus.

      {¶ 47} In this case, the state’s witnesses presented testimony that

provided a consistent and coherent version of the incident, provided a

timeline that was verified by cell phone records and 911 calls, and provided

evidence that remained unshaken on cross-examination.         State v. Wilson,

Cuyahoga App. No. 90267, 2008-Ohio-3354, ¶34. Rios’s version of his actions

on the night of the incident, as he presented in his statement to Armelli, on

the other hand, were inconsistent and were belied by the physical evidence

obtained.

      {¶ 48} Initially, Rios could not explain why he signed the affidavit on

Reed’s behalf without reading it. Then he provided several different versions

of his activities on the night of the murder, finally conceding he was present,
                                     15

but asserting he tried to prevent the shooting.      Rios could not provide a

believable reason for waiting until Reed was convicted before coming forward.

      {¶ 49} O’Brien’s testimony contradicted all of Rios’s versions of the

incident. The jury weighed credibility and it, as the fact finder, was free to

believe all, none, or some of what the witnesses said during trial.           In

addition, the jury was well aware of the way in which O’Brien and Schade

became acquainted; the jury nevertheless could determine that their

attenuated relationship lent credence to their separate but similar accounts of

what occurred on the night of the incident.

      {¶ 50} This court cannot find, therefore, that the jury either lost its way

or created a manifest miscarriage of justice.       James; see, also, State v.

Jenkins, Stark App. No. 2008 CA 00191, 2009-Ohio-6254. Accordingly, Rios’s

second assignment of error also is overruled.

      {¶ 51} Rios argues in his third assignment of error that his trial counsel

rendered ineffective assistance by failing to either move for or obtain

suppression of Rios’s oral statement he provided to Det. Armelli. In light of

the record, his argument lacks merit.

      {¶ 52} The claim of ineffective assistance of counsel requires proof that

“counsel’s performance has fallen below an objective standard of reasonable

representation” and, in addition, prejudice arises from counsel’s performance.
                                      16

 State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of

the syllabus; see, also, State v. Lytle (1976), 48 Ohio St.2d 391, 358 N.E.2d

623.   The establishment of prejudice requires proof “that there exists a

reasonable probability that were it not for counsel’s errors, the result of the

trial would have been different.” Bradley, paragraph three of the syllabus.

       {¶ 53} The burden is on appellant to prove ineffectiveness of counsel.

State v. Smith (1985), 17 Ohio St.3d 98, 477 N.E.2d 1128. Trial counsel is

strongly presumed to have rendered adequate assistance.           Id.   Moreover,

this court will not second-guess what could be considered to be a matter of

trial strategy.   Id.   The record in this case with regard to trial counsel’s

actions fails to demonstrate counsel’s performance fell below an objective

standard of reasonableness.

       {¶ 54} At the outset, trial counsel informed the jury that the police found

Rios only “because he told them that he was there.” The defense strategy

thus clearly was to acknowledge Rios’s statement. Trial counsel wanted the

jury to know that Rios eventually provided “his entire story” in his statement

to Armelli and another detective for two reasons.

       {¶ 55} First, counsel sought to portray Rios in the best light possible.

The videotaped statement shows that Rios ultimately cooperated in the

investigation, and, during a pause in Armelli’s questioning, Rios wept as he
                                      17

sat in the room by himself.     Defense counsel sought to demonstrate Rios

lacked any direct culpability for either Reed’s or the shooter’s actions, but

remained fearful of reprisals from them.

      {¶ 56} Second, counsel sought to point out that Rios made the statement

in spite of the fact that, at the outset, Armelli paid no attention to Rios’s

assertion that he had an attorney, and further failed to inform Rios that his

interview was being videotaped.       The defense sought in this manner to

portray the detectives as devious; counsel’s questions of Armelli emphasized

all the untruths Armelli and his partner provided to Rios during the taped

interview.

      {¶ 57} In light of the overwhelming evidence against his client, this

court cannot find trial counsel’s strategy, albeit unsuccessful, constituted

ineffective assistance. State v. Flors (1987), 38 Ohio App.3d 133, 528 N.E.2d

950. Consequently, Rios’s third assignment of error also is overruled.

      {¶ 58} In his fourth assignment of error, Rios argues the trial court

erred when it sentenced him to consecutive terms for his convictions for

aggravated murder and aggravated burglary. Rios contends these offenses

should have been merged pursuant to R.C. 2941.25(A). This argument is

rejected.

      {¶ 59} R.C. 2941.25 provides:
                                    18

      {¶ 60} “(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant may

be convicted of only one.

      {¶ 61} “(B) Where the defendant’s conduct constitutes two or more

offenses of dissimilar import, or where his conduct results in two or more

offenses of the same or similar kind committed separately or with a separate

animus as to each, the indictment or information may contain counts for all

such offenses, and the defendant may be convicted of all of them.”

      {¶ 62} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942

N.E.2d 1061, at paragraph one of the syllabus, the Ohio Supreme Court

recently has held that in addressing an argument such as Rios’s, a reviewing

court must consider the “conduct of the accused” to determine whether the

crimes were “allied offenses of similar import subject to merger under R.C.

2941.25.”

      {¶ 63} Thus, even if the defendant’s conduct occurs in a “single

transaction,” should the court find that the offenses were committed with a

“separate animus,” the defendant may be convicted of more than one of the

offenses. Id., ¶51.   See, also, State v. Wynn, Cuyahoga App. No. 93057,

2010-Ohio-519. Johnson held at ¶48:
                                     19

      {¶ 64} “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. [State v.] Blankenship,

38 Ohio St.3d [116] at 119, 526 N.E.2d 816 (Whiteside, J., concurring).”

(Emphasis in original; underscoring added.)

      {¶ 65} In a case such as this one, therefore, in which Rios’s conduct in

entering the house with his cohorts in order to rob Slaypak and O’Brien, then

aiding and abetting the subsequent gunshot murder of Slaypak, constituted

distinctly separate crimes, the trial court did not err in convicting and

sentencing Rios for each offense.

      {¶ 66} A review of the record demonstrates the trial court “merged” all of

the firearm specifications, “merged” each offense that warranted application

of R.C. 2941.25(A), and imposed consecutive terms for Rios’s commission of

aggravated burglary and aggravated murder. Since this sentence comported

with statutory requirements, Rios’s fourth assignment of error also is

overruled.

      {¶ 67} Rios’s convictions and sentences are affirmed.

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

      The court finds there were reasonable grounds for this appeal.
                                     20

      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.



__________________________________
KENNETH A. ROCCO, JUDGE

PATRICIA ANN BLACKMON, P.J., and
SEAN C. GALLAGHER, J., CONCUR
