COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59367 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION AUBREY HEAD : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 21, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-219716 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PAUL MANCINO, JR., ESQ. Cuyahoga County Prosecutor 75 Public Square Building MARY E. PAPCKE, ESQ. Suite 1016 Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - HARPER, J.: Defendant-appellant, Aubrey Head, was indicted by the Cuyahoga County Grand Jury on September 4, 1987 in a three count indictment, to wit: under count one, a violation of the Drug Law Statute, R.C. 2925.03, for possession of cocaine (equal to or exceeding three times the bulk amount); under count two, a violation of the Drug Law Statute, R.C. 2925.03, for possession of marijuana; and under count three, Possession of Criminal Tools, R.C. 2923.24, for possession of cash, guns, and a Cleveland Police shotgun. Appellant pled not guilty at his arraignment on September 25, 1987. The state moved to amend the first count of the indictment prior to the commencement of trial after just learning that the gram weight of the cocaine, 10.19 grams, was less than what was stated in the original indictment, 97 grams. The first count of the indictment was amended to read: possession of cocaine, in an amount equal to or exceeding the bulk amount but in an amount less than three times that amount. The state also moved to dismiss the second count of the indictment, possession of marijuana, which was granted by the trial court. Trial by jury thereafter commenced on January 29, 1990. Before the jury was excused for deliberations, the state moved to amend the second count of the indictment, possession of criminal - 2 - tools/1/\. The state sought to change the tools - cash, guns, and shotgun to glass pipe and razor blades. The trial court in finding that there was no evidence of possession of a glass pipe and razor blades, allowed the indictment to be amended to adopt a plastic bag as the criminal tool. The jury subsequently returned guilty verdicts on the remaining two counts of the indictment. The trial court sentenced the appellant to a term of two (2) years on count one with one and one-half (1 1/2) years actual and a $2500 fine and to a term of one and one-half (1 1/2) years on count two to be served concurrently with the sentence in count one. The $2500 fine was suspended by the trial court. Appellant now appeals from his convictions and sentence. A careful review of the record compels affirmance. I. Detective Thomas Parkinson of the Cleveland Police Department Narcotics Unit testified that after executing a search warrant at 7520 Bittern Avenue, Cleveland, Ohio on May 5, 1987, complaints were still being received about drug sales in what used to be a portion of the old White Motor Complex. Surveillance conducted and a controlled buy at that address resulted in the execution of the warrant on May 5, 1987. /1/\ When the trial court nolled the second count of the original indictment, possession of marijuana, the third count of the original indictment, possession of criminal tools, became the second count. - 3 - On July 2, 1987, the detective, along with Detectives Candelaria and Piekarzyck, returned to 7520 Bittern Avenue which was now Ed Huckerbee's Junk Yard, at approximately 6:55 p.m. Detective Parkinson, seeing that the overhead door was open, pulled his vehicle up to a ramp located in the building. Several males were observed in the building. The detective exited the vehicle, looked through a window and saw the appellant standing inside the inner office. The appellant, who was alone in the room, was then seen throwing a bag down on the coffee table. Detective Parkinson had no trouble retrieving the clear plastic sandwich type bag from the coffee table when the appellant walked away from it. The detective identified State's Exhibit D which was the plastic bag containing eleven (11) smaller packets of cocaine. A written consent to search the premises was given to the detectives by Ed Huckerbee. The detectives recovered the following items in their search: Smith and Wesson .38 caliber revolver, triple beam scale, high standard Cleveland Police Department shotgun, razor blades, a glass pipe, and $1,990. The appellant testified on his own behalf. He testified that he knew Ed Huckerbee for over thirty years and that he was working for him at the Bittern address for at least a year, constructing partition walls. During cross-examination, he testified that he was on the premises during the May 5th search. On July 2, 1987, the appellant testified that he was sitting on one of two couches in the inner office, eating chicken, when - 4 - he saw the arrival of the police through the window. In the inner office with him were Ed Huckerbee, Ed's son, Charlie Sanders and an unidentified male. These four men walked out of the inner office when Detective Parkinson entered it; the appellant continued to eat the chicken. The detective moved to the couch on which the appellant was not sitting, and discovered the plastic bag behind the couch, next to the wall. He told the detective that the bag, "ain't mines." He also denied that he ever threw anything on the coffee table or that he saw the glass pipe and razor blades found thereon. Detectives Candelaria and Pierkarzyk were not in the inner office with Detective Parkinson. However, Detective Pierkarzyk testified that it would be impossible to see their arrival through the window of the inner office if seated at the couch in that office as testified to by appellant. II. Appellant, in his first assignment of error, contends that: "THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REMANDED THE DEFENDANT TO JAIL AS A RESULT OF THE DEFENDANT BEING UNWILLING TO ENTER A PLEA OF GUILTY." On January 29, 1990, prior to trial, the court conducted a "bond review hearing". The appellant was released on a bond prior to trial pursuant to Crim. R. 46(C)(4). He, therefore, argues that he was entitled to remain on that bond pursuant to Crim. 46(J) until the return of a verdict or judgment. The record reveals that the appellant's bond was initially set at $10,000. The trial court, finding a high probability of - 5 - guilt, increased the bond to $50,000 after the hearing. The appellant was remanded to jail until the time bail was posted. Contrary to appellant's assertion in this assignment of error, the record fails to reveal that he was remanded to jail because he was unwilling to enter a guilty plea. The issue of whether the appellant was denied due process of law when he was ordered to jail until bond was posted, is moot. It should have been raised, if at all, by habeas corpus. See, Jenkins v. Billy (1989), 43 Ohio St. 3d 84; State v. Bevacqua (1946), 147 Ohio St. 20; State v. Hines (July 28, 1988), Cuyahoga App. No. 54190, unreported. III. Appellant's second assignment of error is that: "THE DEFENDANT WAS DENIED DUE PROCESS OF LAW AND FUNDAMENTAL FAIRNESS WHEN HIS TRIAL WAS HELD AT A PERIOD OF TIME WAY IN EXCESS OF THE SPEEDY TRIAL TIME PROVISIONS." The appellant was indicted on September 4, 1987. At his arraignment on September 25, 1987, he entered a plea of not guilty. Appellant waived his right to speedy trial on December 14, 1987. The case was thereafter set for trial on January 19, 1988. After a series of continuances and rescheduled trial dates, trial commenced on January 29, 1990. Appellant, in jail for approximately three months in 1989, argues that he was denied his statutory right to speedy trial as set forth in R.C. 2945.71. The record reveals that appellant signed a speedy trial waiver on December 14, 1987. Appellant's argument that this waiver was conditioned upon trial commencing on January 19, 1988 - 6 - is dispelled by the waiver itself. The statement that the appellant waives his right to a speedy trial even if the trial "has to be continued indefinitely" is contained in the waiver. There were, thus, no conditions placed on the waiver. Assuming arguendo there was such a condition, the record indicates that appellant never filed a motion to dismiss for lack of speedy trial. This court will not review an error which could have been called to the trial court's attention, by a complaining party, when the trial court could have corrected the error. State v. Williams (1977), 51 Ohio St. 2d 112; State v. Childs (1968), 14 Ohio St. 2d 56; State v. Barnes (Apr. 16, 1987), Cuyahoga App. No. 51844, unreported. See, also, State v. Ogilby (1982), 8 Ohio App. 3d 25. Appellant's second assignment is not well taken. IV. In his third assignment of error, appellant contends that: "THE DEFENDANT WAS DENIED HIS RIGHT OF CONFRONTATION AND CROSS-EXAMINATION WHEN THE COURT WOULD NOT ORDER PRODUCTION OF THE MINUTES OF THE GRAND JURY AND PERMIT CROSS-EXAMINATION OF THE POLICE OFFICER CONCERNING FACTS RELATED IN A POLICE REPORT WHICH WAS DISCOVERABLE UNDER RULE 16 OF THE OHIO RULES OF CRIMINAL PROCEDURE." A. The indictment in this case initially charged that the amount of cocaine was over three times the bulk amount, to wit: 97 grams. Prior to voir dire, the state moved to amend the indictment to a lesser gram weight, to read 10.19 grams. Defense counsel moved during trial, to have the Grand Jury testimony produced in reference to the gram weight of cocaine. Appellant - 7 - argues that the purpose of the motion was to impeach Detective Parkinson. Crim. R. 6(E) controls the disclosure of grand jury testimony. The Ohio Supreme Court in State v. Greer (1981), 66 Ohio St. 3d 139, held that: "Grand jury proceedings are secret, and an accused is not entitled to inspect grand jury transcripts either before or during trial unless the ends of justice require it and there is a showing by the defense that a particularized need for disclosure exists which outweighs the need for secrecy. (Paragraph three of the syllabus in State v. Patterson, 28 Ohio St. 2d 181, approved and followed.)" Id., paragraph two of the syllabus. Further, whether a particularized need for disclosure of grand jury testimony has been demonstrated is a question of fact for the trial court. Id., paragraph three of the syllabus. A particularized need is shown where the facts and circumstances demonstrate that unless such relief is allowed, the defendant will be deprived of a fair adjudication of the allegations which were placed in issue by a witness' trial testimony. Id. See, also, State v. Davis (1988), 30 Ohio St. 3d 361, 365; State v. Sellards (1985), 17 Ohio St. 3d 169, 173. In the case sub judice, the record reveals no abuse of discretion by the trial court when it denied appellant's request to review the grand jury proceedings. Appellant's indictment was amended prior to trial to conform to the evidence. He thus fails to demonstrate a particularized need for the testimony since there was no indication he would be deprived of a full and fair adjudication of the allegations placed in issue by any witnesses' - 8 - trial testimony. See, State v. Flora (June 20, 1991), Cuyahoga App. No. 58862, unreported. The only person who mentioned the difference in the gram weight in the original indictment and the amended one was defense counsel. B. Detective Candelaria prepared a police report which was presented to the grand jury. During the state's direct examination of Detective Parkinson, the defense was permitted an in-camera inspection of the report. However, the trial court cautioned that the report should not be cited in appellant's cross-examination of Detective Parkinson. Appellant sought to use the report nevertheless to determine whether a statement made to Detective Candelaria by Detective Parkinson, as set forth in the report, was accurate. This court held in State v. Smith (1976), 50 Ohio App. 2d 183, that: "In the trial of a criminal case an accused's counsel is not entitled to inspect a written police report where an officer does not use the report while testifying, notwithstanding the fact that he read it to refresh his recollection prior to taking the witness stand." Id., paragraph two of the syllabus. See, also, State v. Adams (Sept. 29, 1983), Cuyahoga App. No. 44407, unreported. Therefore, in the instant case, since appellant was never entitled to inspect Detective Candelaria's police report during Detective Parkinson's testimony, he cannot now complain that he was erroneously denied the use of it in cross-examining Detective Parkinson. - 9 - Appellant's third assignment of error is accordingly overruled. V. Appellant, in his fourth assignment of error, asserts that: "THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN EVIDENCE CONCERNING OTHER UNCHARGED CRIMINAL PROCEEDINGS WERE INTRODUCED AT THE TRIAL OF THIS CASE." Appellant contends it was improper and prejudicial for the jury to hear testimony regarding the execution of a search warrant for the premises on May 5, 1987 and evidence of a controlled buy. Appellant argues that this "other acts" evidence is prohibited under Evid. R. 404(B). Evid. R. 404(B) limits the use of "other acts" evidence and states: "(B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." (Emphasis added.) The rule's purpose is to safeguard a defendant from being convicted, not because of evidence relating to the crime for which he is on trial, but by totally unrelated evidence of other crimes, wrongs or acts attributable to him. The only evidence connecting the appellant to the May 5, 1987 search was that he was present during it. His presence was not unlikely since he testified that he was a long time friend of Ed Huckerbee and that he worked at the Bittern Avenue address for nearly a year. Moreover, appellant called Officer Candelaria to - 10 - testify for the defense; the officer testified about the May 5th search. Appellant also testified about his knowledge of the May 5th search during cross-examination, without objection. The state, therefore, never introduced evidence of other crimes, wrongs or acts for the purpose of showing that he acted in conformity therewith. All that was revealed was that he was present during the search. His argument that he was deprived of a fair trial by the introduction of "other acts" evidence has no merit. VI. For his fifth assignment of error, appellant contends that: "THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS WHEN THE COURT PERMITTED AN AMENDMENT TO THE INDICTMENT ON THE CHARGE OF POSSESSION OF CRIMINAL TOOLS AFTER THE CLOSE OF ALL OF THE EVIDENCE AND WHEN DEFENSE COUNSEL MADE A MOTION FOR JUDGMENT OF ACQUITTAL." Appellant was initially indicted for possession of criminal tools, the criminal tools being "cash, guns and Cleveland Police shotgun." At the close of the evidence, and after a denial of appellant's renewed motion for acquittal, the state moved to amend the indictment to include a glass pipe and razor blades as the criminal tools. The trial court disallowed the amendment as requested, finding no possession of these instruments, but allowed the plastic bag to constitute the criminal tool. Appellant argues that this "constituted an unconstitutional amendment to the indictment." Crim. R. 7(D) sets forth the procedures for amending indictments. This rule provides in part: - 11 - "The court may at any time before, during, or after a trial amend the indictment, information, complaint or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. ***" The rule clearly allows amendment of an indictment after trial, as long as the amendment makes no change in the name or identity of the crime charged. Here, the amendment of the indictment to state a plastic bag as the criminal tool did not change the name or identity of the crime charged. The amendment was necessary so that the indictment would conform to the evidence. The name of the crime remained the same both before and after the amendment: Possession of Criminal Tools. The identity of the crime was likewise not changed by the amendment. Further, the amendment neither changed the penalty nor the degree of the offense. Thus, the amendment was proper pursuant to Crim. R. 7(D). See, State v. O'Brien (1987), 30 Ohio St. 3d 122; State v. Broom (Dec. 13, 1990), Cuyahoga App. No. 57766, unreported. Appellant's fifth assignment of error is overruled. VII. In his sixth assignment of error, appellant contends that: "THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF THE FELONY OFFENSE OF POSSESSION OF CRIMINAL TOOLS RATHER THAN THE MISDEMEANOR OFFENSE OF POSSESSION OF DRUG PARAPHERNALIA." The indictment charged the appellant with Possession of Criminal Tools under R.C. 2923.24, a felony of the fourth degree. He argues that he should have been charged under R.C. 2925.12, - 12 - Possession of Drug Abuse Instruments which is a misdemeanor of the second degree. In State v. Volpe (1988), 38 Ohio St. 3d 191, the Ohio Supreme Court analyzed the relationship between R.C. 2923.24 and R.C. 2915.02(A)(5) which criminalized the possession of any gambling device with intent to engage in gambling activities as a misdemeanor. The defendants in Volpe were convicted under R.C. 2923.24. The court found that the convictions could not stand in light of R.C. 2915.02(A)(5). The court stated, in reversing the convictions, that: "Well-established principles of statutory construction require that specific statutory provisions prevail over conflicting general statutes. R.C. 1.51 states that: "'If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.'" Id., 193. The court, in Volpe, in dicta, specifically referred to R.C. 2925.12 as taking precedence over R.C. 2923.24. Id., 194. However, R.C. 2925.12 only takes precedence over R.C. 2923.24 when it is applicable to the facts of a case. This court in State v. Chandler (1989), 54 Ohio App. 3d 92, vacated the defendant's conviction under R.C. 2923.24. The court found that the defendant could only be convicted of R.C. 2925.12 - 13 - for his possession of syringes. Quoting a portion of Volpe, this court in Chandler stated that: "'["] Given that the General Assembly clearly enacted [R.C. 2925.12(A)] to reach criminal possession and control of [a syringe] and classified such conduct as a misdemeanor of the [second] degree under [R.C. 2925.12(C)], we hold that R.C. 2923.24, a general statute prohibiting possession and control of criminal tools and classifying such conduct as a fourth degree felony, cannot be used to charge and convict a person of possessing and controlling [a syringe].["]'" Id., 95. R.C. 2925.12 is totally inapplicable to the within action. The statute (possessing drug abuse instruments) provides in part: "'(A) No person shall knowingly *** possess *** or use any instrument, article, or thing whose customary and primary purpose is for the administration or use of a dangerous drug, other than marijuana, when the instrument involved is a hypodermic or syringe ***. "***" As stated supra, the legislature enacted the statute to make the possession of syringes a criminal act. A plastic bag is not a syringe. Further, a plastic bag is not an instrument, article, or thing whose customary and primary purpose is for the administration or use of a dangerous drug. The plastic bag was used to carry eleven packets of cocaine by the appellant. The appellant was, therefore, not denied due process of law by being convicted under R.C. 2923.24. Appellant's sixth assignment of error is overruled. VIII. Appellant asserts in his seventh assignment of error that: "THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL." - 14 - Appellant contends that he was denied effective assistance of counsel as a result of several errors and omissions occurring throughout the trial. Specifically, he argues that counsel failed to file a motion to suppress, failed to request the trial judge to remove himself from the case, and erred in stipulating to the controlled substance, cocaine, and its weight, 10.19 grams. A 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." State v. Bradley (1989), 42 Ohio St. 3d 136, paragraph two of the syllabus. In order to establish prejudice, it must be shown "that there exists a reasonable probability that, were it not for counsel's error, the result of the trial would have been different." Id., paragraph three of the syllabus. Further, the appellant's inability to demonstrate the prejudicial effect of defense counsel's alleged deficient conduct ipso facto results in the failure of the ineffective assistance of counsel claim. Id., 143; See, State v. Knapp (Sept. 26, 1991), Cuyahoga App. No. 60555, unreported. A. The record herein reveals that defense counsel filed a motion to suppress on December 2, 1987. However, prior to trial, when the trial court asked defense counsel if there were such a motion, counsel responded "no." Even if there had been such a motion, appellant would have been unsuccessful in the attempt to - 15 - suppress notwithstanding that Ed Huckerbee signed a consent form for the search of the premises. A person whose rights have been violated can only assert Fourth Amendment rights which are personal. Rakas v. Illinois (1978), 439 U.S. 128. Standing can only, therefore, be invoked by a person with a legitimate expectation of privacy in the particular area searched in order to assert a Fourth Amendment violation by the police. Id. A defendant bears the burden of proving that he had a legitimate expectation of privacy in the area searched. United States v. Salucci (1980), 448 U.S. 83, 86. He must set forth facts sufficient to establish his legitimate expectation of privacy. Sate v. Steele (1981), 2 Ohio App. 3d 105, 107. Automatic standing is no longer warranted; a defendant charged with crimes of possession is also required to establish his privacy interest. Salvucci, supra. In the instant case, the officers searched and seized evidence from Ed Huckerbee's Junk Yard. Ed Huckerbee was the proprietor of the premises. Appellant's claim that he "clearly had a right to be where he was" fails to even approach the burden of establishing a legitimate expectation of privacy. Furthermore, the appellant lacked standing to object to a search and seizure of property which he abandoned voluntarily. The abandonment of property legally deprives a defendant of standing to challenge a subsequent search and seizure. State v. Freeman (1980), 64 Ohio St. 2d 291, 298. The record reveals that - 16 - the appellant threw the bag of cocaine when approached by the officer. He, therefore, no longer retained a reasonable expectation of privacy with the plastic bag of cocaine once he voluntarily disposed of it. See, State v. Macklin (Dec. 16, 1990), Cuyahoga App. No. 57747, unreported. B. Appellant next asserts that trial counsel should have sought removal of the judge from the case. This assertion is based on the judge's participation in plea bargaining negotiations. Appellant argues that such participation is improper. Initially it is noted that appellant incorrectly cites State v. Byrd (1980), 63 Ohio St. 2d 288, for the proposition that all participation in plea bargaining by a judge is improper. In refusing to hold that a judge's participation per se renders a plea invalid, the Ohio Supreme Court held that: "*** a trial judge's participation in the plea bargaining process must be carefully scrutinized to determine if the judge's intervention affected the voluntariness of the defendant's guilty plea. Ordinarily, if the judge's active conduct could lead a defendant to believe he cannot get a fair trial because the judge thinks that a trial is a futile exercise or the judge would be biased against him at trial, the plea should be held to be involuntary and void under the Fifth Amendment and Section 10, Article I of the Ohio Constitution." Id. In the case sub judice, appellant did not enter a plea of guilty but proceeded to trial by jury. Appellant was, therefore, not forced, coerced or intimidated into entering a plea as a - 17 - result of any participation in plea negotiations by the trial judge. C. Appellant's trial counsel stipulated that the controlled substance was cocaine and that it amounted to 10.19 grams. He argues that the jury could have found that the amount was less than the bulk amount and they were precluded from this fact finding function as a result of the stipulation. A properly licensed attorney is presumed to be competent in executing his duties in an ethical manner. State v. Smith (1985), 17 Ohio St. 3d 98. Given this presumption, that trial counsel's performance constituted reasonable assistance, his actions must be viewed as tactical decisions and fail to rise to the level of ineffective assistance. Moreover, appellant did not meet his burden of proving prejudice from any of the claimed deficient conduct on behalf of his trial counsel since he did not show there was a "reasonable probability" that but for his counsel's actions, the result of the case would have been different. In conclusion, appellant fails to demonstrate that he was denied the effective assistance of counsel. Appellant's seventh assignment of error is overruled. Judgment affirmed. - 18 - 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. DAVID T. MATIA, P.J., and LEO SPELLACY, J., CONCUR. SARA J. HARPER 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. .