COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59120 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : MARIE EARLE : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 10, 1991 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-236400 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: JAMES GUTIERREZ Assistant County Prosecutor The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: JAMES R. WILLIS Suite 610, Bond Court Building 1300 East Ninth Street Cleveland, Ohio 44114 -2- SPELLACY, J.: On February 27, 1989, defendant-appellant Marie Earle ("appellant") was indicted for gambling, in violation of R.C. 2915.02, complicity in gambling, in violation of R.C. 2915.02 and R.C. 2023.23, operating a gambling house, in violation of R.C. 2915.03, and possession of criminal tools, in violation of R.C. 2923.24. A trial commenced on October 11, 1989. At the conclusion of the trial, the jury found appellant guilty of operating a gambling house and possession of criminal tools. The trial court sentenced appellant to a term of one year for each count. The trial court then suspended the sentence and placed appellant on probation for one year. Pertinent testimony from the trial reveals the following: On February 18, 1989, at approximately 12:05 A.M., Detective David Benning, Officer George Galjan, and two other police officers from the Cleveland Police Department executed a search warrant at the Venezzo Club, a private club owned and operated by appellant. The police officers, who were let into the club by appellant, found eight or nine people sitting at a table with playing cards and poker chips in front of them. Detective Benning testified that these individuals immediately began to pull the poker chips in the middle of the table towards themselves until they were stopped by the police officers. He further stated that one of the individuals attempted to hide a -3- coffee can with a slit in its lid by placing it on the floor. Detective Benning believed the coffee can was a cut box. He explained that a cut box is a container into which poker players place a percentage of each pot for the house. He went on to state that the coffee can, which was admitted into evidence, had inadvertently been left off of the evidence inventory list made by the police officers. During their search, the police officers also found several signs attached to the walls of the club. One of these signs stated "Notice. No loans or cashing of personal checks. No exceptions." Another sign gave the names and ex- plained the rules for various poker games. In addition, the police officers found a piece of paper with numbers written on it next to an attache case which had been designed to contain poker chips; a notebook with the names of the club's members, $390 in appellant's handbag, and additional poker chips, playing cards, and coffee cans. The search was the result of an investigation by the Cleveland Police Department. Detective Benning testified that he had been investigating the club since 1979 and that he had been in the club many times during that time period. He stated that he saw people playing cards about eighty percent of the time and saw money on the table several times. Detective Benning also testified that while he was at the club on the night the search warrant was executed, Donnie Garner, one of the card players, approached him and stated that the -4- police officers had missed the money because appellant had hidden it. The court called Donnie Garner as a witness. Garner testified the card players had been playing five card stud poker when the police officers arrived at the club on February 18, 1989, and that they had not been playing for money. He also stated that the police officers had staged photographs by putting cards in the players hands. In addition, Garner testified there had been a coffee can at the table, but that it was not the one introduced into evidence. On recross-examination, he admitted that the coffee can entered into evidence might be the coffee can from the card game. Officer Barbara Parker testified that, as part of the investigation, on October 15, 1988, at approximately 3:30 A.M., she and Officer Galjan entered the club, after identifying themselves as police officers, and saw several people playing poker with poker chips and currency on the table. In her defense, appellant testified that the club has two hundred to two hundred and fifty active members who pay a fee of $125 per year. She further stated that although she allows gambling at the club, she does not allow people to gamble for money. Appellant went on to state that the piece of paper found next to the attache case did not contain her handwriting. She also explained the coffee cans at the club were "kitty cans", used by the card players when they wanted to build up a fund of -5- chips from the pot. She added that the coffee can entered into evidence was not from the club. Appellant went on to testify that Officer Galjan tried to stage photographs by putting cards in the players' hands. Finally, appellant testified that some of the money in her handbag had come from rent she had collected from her rental property and she had withdrawn the rest from a bank account for a doctor's visit the next day. During the course of the trial, the trial court held a hearing concerning the admissibility of oral statements made by appellant. At this hearing, Officer Galjan initially testified that he had arrested appellant for an outstanding arrest warrant for housing code violations. Later, he corrected himself and testified that he had arrested appellant for both the outstanding arrest warrant and for gambling activity. Appellant filed a timely notice of appeal and raises the following assignments of error: I. THE APPELLANT WAS DENIED DUE PROCESS WHEN (1) THE TRIAL COURT EXPOSED HER TO BEING CONVICTED ON LESS THAN JURY UNANIMITY AND (2) THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A GUILTY VERDICT ON AT LEAST ONE OF SEVERAL ALTERNATIVE THEORIES SUBMITTED TO THE JURY. II. WHEN APPELLANT'S COUNSEL FAILED TO FILE A MOTION TO SUPPRESS EVIDENCE THAT WAS OBTAINED IN VIOLATION OF THE FOURTH AMENDMENT, THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL. III. THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS (SIC) CONTRARY TO LAW. -6- I. In her first assignment of error, appellant contends the trial court violated her right to due process because it erred during its instructions to the jury on count one, gambling, in violation of R.C. 2915.02, of the indictment. Although appellant was indicted for gambling, the jury found her not guilty on this count. Thus, error, if any, is harmless. Accordingly, appellant's first assignment of error is not well taken. II. In her second assignment of error, appellant contends she was denied her right to effective assistance of counsel because her trial counsel did not file a motion to suppress evidence obtained in violation of the Fourth Amendment. Appellant's assignment of error lacks merit. "A criminal conviction will not be reversed on the ground of ineffective assistance of counsel solely because defense counsel failed to file a timely motion to suppress evidence, where the record does not demonstrate that the evidence was illegally obtained." State v. Gibson (1980), 69 Ohio App. 2d 91, paragraph two of the syllabus. Appellant argues that a motion to suppress should have been filed based on Officer Galjan's inconsistent testimony concerning whether he arrested appellant for an outstanding arrest warrant or for gambling activity. Appellant also points to the fact that the search warrant did not mention housing code violations. -7- Clearly, these facts have no bearing on the validity of the search. Therefore, they do not demonstrate that the evidence was illegally obtained. Accordingly, appellant's second assignment of error is not well taken. III. In her third assignment of error, appellant contends her conviction for operating a gambling house, in violation of R.C. 2915.03, was against the manifest weight of the evidence and her conviction for possession of criminal tools, in violation of R.C. 2923.24, was contrary to law. Appellant's assignment of error lacks merit. First, in State v. Davis (1988), 49 Ohio App. 3d 109, para- graph three of the syllabus, the court set forth the test to be used when determining whether a verdict is against the manifest weight of the evidence. *** the court, reviewing the entire record, 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. Upon a review of the record, we find the jury was justified in finding appellant guilty of operating a gambling house. Second, as appellant correctly points out, an individual cannot be convicted of possessing criminal tools under R.C. -8- 2923.24/1\ for possessing a "gambling device"./2\ See State v. Volpe (1988), 38 Ohio St. 3d 191, paragraph two of the syllabus. In addition to being indicted for possessing various gambling devices, however, appellant was indicted for possessing the membership notebook and money. As a result, appellant's con- viction for possessing criminal tools was not contrary to law. Accordingly, appellant's third assignment of error is not well taken. Judgment affirmed. /1\ R.C. 2923.24 provides in pertinent part: No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally. /2\ R.C. 2915.01(F) defines a gambling device as follows: (1) A book, totalizer, or other equipment for recording bets; (2) A ticket, token, or other device representing a chance, share, or interest in a scheme of chance, except a charitable bingo game, or evidencing a bet; (3) A deck of cards, dice, gaming table, roulette wheel, slot machine, punch board, or other apparatus designed for use in connec- tion with a game of chance; (4) Any equipment, device, apparatus, or paraphernalia specially designed for gambling purposes. -9- It is ordered that appellee recover of appellant its 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. KRUPANSKY, C.J., and FRANCIS E. SWEENEY, J., CONCUR. LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .