COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59928 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : EDDIE MASSEY : : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 30, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-232890 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES PAUL A. MANCINO, JR. Cuyahoga County Prosecutor 75 Public Square 8th Floor, Justice Center Suite 1016 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- ECONOMUS, J.: Appellant, Eddie Massey, timely appeals a conviction for Drug Trafficking that was the result of a jury verdict. After having reviewed the record and arguments of counsel, we affirm the conviction. Appellant was indicted in October, 1988, in a four count indictment along with two other co-defendants, Leon Butler and Christopher Beane. The first count of the indictment was for Drug Trafficking in excess of three times the bulk amount of cocaine. The indictment contained two other counts of permitting a motor vehicle for a felony drug offense. The remaining count was for possession of criminal tools. All three men were indicted on the same four charges. In January, 1990, the first of two trials commenced wherein Appellant and a co-defendant Leon Butler were to be tried. Appellee, State of Ohio's, first witness was co-defendant Christopher Beane, who agreed to become a witness for the prosecution. Christopher Beane testified that he had known a Rick Dunning for approximately eight years. In September, 1988, Beane advised Dunning, unaware of the fact that he was an informant to the D.E.A., that he would check around to try and locate two kilograms of cocaine for him. According to Beane's testimony, he contacted Appellant in his attempts to locate the two kilograms of cocaine for Dunning. Beane testified that he spoke with Appellant probably once a week for about four weeks regarding the two kilogram transaction. According to Beane, -3- Appellant stated that he did not have anything at the time but he knew some people and would let him know. On or about October 19, 1988, Appellant phoned Beane and advised him that he had the cocaine. Beane's exact testimony was that Appellant phoned and said "that the guy arrived and he had the package or whatever we used for the word, you know." The two, Beane and Appellant, agreed to meet at the intersection of Route 303 and Gerhart Road in Medina County because it was in between their respective homes. Beane testified that Appellant was driving a white Sterling when he arrived. Appellant had another black male in the car with him. Beane approached the vehicle and Appellant gave him a kilogram of cocaine. Even though the agreed upon price for the cocaine was Twenty-Two Thousand Dollars ($22,000.00), there was no money exchanged because Beane and Appellant had agreed that the cocaine would be "fronted" to Beane until he collected from Dunning. Beane advised Appellant that he would take care of the payment the following day. On the following day, Beane met with Rick Dunning at a Holiday Inn in Strongsville, Ohio in Cuyahoga County. Beane was arrested while delivering the cocaine to Dunning. He was then taken to the D.E.A. office in downtown Cleveland and booked. After Beane contacted his attorney, he agreed to cooperate with the D.E.A. agents and as part of the agreement placed a phone call to Appellant from the D.E.A. office. With Beane's knowledge and consent, this phone conversation was taped by D.E.A. agents. -4- During the recorded phone conversation, Beane and Appellant arranged to meet at the Sheraton Motor Inn at Cleveland Hopkins Airport, in Cuyahoga County, Ohio. Beane testified that he was going to the airport in order to deliver the money. At approximately six o'clock p.m., Beane met Appellant at the airport. Appellant was driving the same white Sterling. Furthermore, a plan had been prearranged as to how the D.E.A. agents who were undercover at the airport would make the arrests. It was agreed that Beane would also be arrested. Beane, who was wearing a wire at the time, approached the white Sterling at the driver's side window and began to have a conversation with Appellant. Beane and Appellant had some conversation at that point about some future kilogram transactions. During this discussion, Beane left the money in the car that he was driving. When he left the side of Appellant's car to go and get the money, Appellant and Butler remained in the car. As Beane retrieved the satchel containing the money, all three men were arrested. The second witness for the prosecution, in the first trial, was D.E.A. Agent Moritz. His testimony was highly corroborative with that of Beane. Moritz was present when Beane was arrested at the Holiday Inn in Strongsville, Ohio. Moritz was present when Beane was taken to the D.E.A. office and agreed to cooperate with them in placing a recorded phone call to Appellant. Moritz counted and packaged the money that Beane was also to utilize at the airport. Additionally, Moritz instructed Beane on exactly -5- what he was supposed to do at the Airport, fitted him with a body recorder, and advised him of the signal that would be used for the agents to arrest everyone, including Beane. Agent Moritz also instructed Beane to engage Appellant and the other male in the car in conversation about the possibility of future drug transactions. Moritz followed Beane to the airport, observed Beane approach Appellant's car, and ultimately gave the signal to arrest all three men as Beane was returning to Appellant's car with the money. Moritz also testified about what happened after Appellant, Butler, and Beane were arrested. His testimony was that Butler was advised of his constitutional rights. At this juncture in the trial, counsel for Butler and Appellant made a motion to suppress statements allegedly made by Butler. The trial court conducted a hearing on the motion to suppress in mid-trial and overruled the motion to suppress Butler's oral statements. The trial resumed and Moritz testified as to what the oral statements were that had been made by both Butler and Appellant. According to Moritz, Butler made the statement that he did not bring cocaine up from Florida, but was only going to transport money down. Also, according to Agent Moritz, Appellant made an oral statement that he did not deliver any drugs to Beane but was only putting two people together. Appellee's third witness, during the first trial, was Agent John Clayton. He was present with Agent Moritz when Beane was arrested in Strongsville, Ohio. He was also present for all the -6- events leading up to the arrests at the airport as well as being present for the actual arrests at the airport. Agent Clayton testified as to Appellant's oral statement that he was not selling cocaine, but only putting two people together. Agent Clayton then testified about the advisement given to Butler with respect to what it meant to waive his rights. His testimony was "that he was not giving up those rights, we were merely asking him to cooperate and that's what waiving the rights would mean." After this testimony was given, counsel for Butler and Appellant renewed his motion to suppress statements made by Butler. The trial court granted the motion to suppress, reversing its earlier ruling. Counsel for the two defendants then requested that the trial court declare a mistrial because the jury had heard Butler's statement about transporting money to Florida. The trial court declared a mistrial with respect to both defendants. On April 3, 1990, a second jury trial began. However, Appellant was the only defendant to stand trial because Butler failed to appear. The same witnesses testified on behalf of Appellee, Beane, Moritz, and Clayton. However, Butler's oral statement was suppressed at the outset of the second trial. Beane's testimony was the same as in the previous trial. However, Beane offered some further testimony about the fact that he had sold cocaine on many occasions and had been in the drug trade for nine or ten years. He was familiar with prices of cocaine in 1988 and that an ounce of cocaine sold for -7- approximately One Thousand Five Hundred Dollars ($1,500.00). Beane identified State's Exhibit No. 5 as a list of names and corresponding numbers. He also testified that he knew several drug dealers in the Medina area. Agent Moritz's testimony was essentially the same as it was in the first trial, with respect to his arrest and investigation of Beane and Appellant. Agent Clayton, likewise, rendered essentially the same testimony as he did during the first trial. Clayton did testify about State's Exhibit No. 5 and that it was taken from Appellant's wallet after his arrest. Agent Clayton recognized a name on the list, "Itch", as a name that he was investigating. Interestingly, Itch was one of the names identified by Beane as a Medina area drug dealer. The jury returned a verdict of guilty after deliberations. Appellant's first assignment of error states: THE DEFENDANT WAS DENIED DUE PROCESS OF LAW AND HIS CONVICTION IS UNCONSTITUTIONAL DUE TO THE FACT THAT THERE IS A FAILURE TO SHOW THAT THE SALE OCCURRED IN CUYAHOGA COUNTY. Appellant argues, as the basis for this assigned error, that the evidence adduced at trial demonstrated that the transaction occurred in Medina County. Consequently, Appellant takes the position that the Cuyahoga County Court of Common Pleas did not have jurisdiction. In support of this position, Appellant suggests that the entire transaction occurred in Medina County and not Cuyahoga County. R.C. 2901.12(A) and (G) respectively state: -8- (A) The trial of a criminal case in this state shall be held in a court having jurisdiction of the subject matter, and in the territory of which the offense or any element thereof was committed. (Emphasis added.) (G) When it appears beyond a reasonable doubt that an offense or any element thereof was committed in any of two or more jurisdictions, but it cannot reasonably be determined in which jurisdiction the offense or element was committed, the offender may be tried in any such jurisdiction. Appellant cites the case of State v. Headley (1983), 6 Ohio St. 3d 475 in support of his proposition. Headley is readily distinguishable from the instant case. In Headley, the Ohio Supreme Court found that all of the Appellee's conduct occurred in Stark County and not Summit County where Appellee was indicted. In the instant case, there is evidence that the drugs, provided by Appellant, were delivered to the ultimate purchaser in Strongsville, Ohio in Cuyahoga County. Appellant was present with every intention of collecting the money owed to him at Cleveland Hopkins Airport in Cuyahoga County. This court will follow the dictates of R.C. 2901.12(A) and (G) as well as the holding in Ohio v. Cremeans (1982), 5 Ohio App. 3d 8. In Cremeans, the Meigs County Court of Appeals properly reiterated the rule embodied in R.C. 2901.12 when it held: Where there is evidence that an offense may have occurred either entirely in one county or partially in that county and partially in another county, R.C. 2901.12(G) is applicable and the offender may be tried in either county. Appellant's assignment of error one is overruled. -9- Appellant's second assignment of error states: THE DEFENDANT WAS DENIED HIS RIGHT NOT TO BE PLACED TWICE IN JEOPARDY WHEN A MISTRIAL AS TO HIS CASE WAS IMPROPERLY DECLARED BY REASON OF THE INTRODUCTION OF IMPROPER EVIDENCE WITH REFERENCE TO A CO-DEFENDANT WHO WAS THEN ON TRIAL. Appellant contends that the mistrial was improperly granted as to him since there was no manifest necessity for it to be granted as to him because the improperly admitted evidence pertained to a co-defendant. Appellant suggests that little to no consideration was given to a possible curative instruction, as the statement only impacted on co-defendant Butler. It is Appellant's position that a short instruction from the trial court to have the jury disregard the statement would have allowed both a dismissal from the trial as to Butler and also Appellant's trial to continue. This, in Appellant's view, would have precluded the alleged double jeopardy dilemma. The United States Supreme Court has enunciated clearly in Lee v. United States (1977), 432 U.S. 23 and Oregan v. Kennedy (1982), U.S. , 102 S. Ct. 2083 that double jeopardy does not bar a retrial when the mistrial has been granted at the defendant's request. Additional Ohio authority for this rule of law is the case of State v. Montgomery (1982), 3 Ohio App. 3d 280. This court agrees with Appellee that since the record in the instant case is clear that counsel for Appellant moved for the -10- mistrial, this assigned error lacks merit as a matter of law and is therefore overruled. Appellant's third assignment of error states: THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT PERMITTED EVIDENCE AS TO THE RETAIL PRICES OF DRUGS ON THE STREET. In support of this contention, Appellant argues that evidence about the price of cocaine and testimony about the purity of the cocaine at issue was highly inflammatory, irrelevant, and misleading. Thus, the admission of evidence pertaining to retail prices and purity of cocaine was improper. Appellant was indicted for sale of cocaine. It was not an abuse of discretion for the trial court to permit testimony regarding the purity level of the cocaine at issue in this case as well as testimony about the retail price of cocaine. More importantly, this argument was waived in the lower court. Counsel for Appellant did not object at the time that the questions about price and quantity were asked. Further, counsel for Appellant stipulated to the chemical analysis of the cocaine in question and did not object to the testimony regarding purity level. It is axiomatic that an objection in the lower court must be raised to first give the trial court an opportunity to correct the error and to also preserve the issue for appeal. Since no objections to this testimony were raised, Appellant waived these -11- claimed errors. Assignment of error three is overruled. See, State v. Brown (1988), 30 Ohio St. 3d 305. Because Appellant's assignments of error four and five are interrelated, they will be addressed together. Respectively, they state: THE DEFENDANT WAS DENIED A FAIR TRIAL BY REASON OF THE INTRODUCTION OF IRRELEVANT, IMMATERIAL AND PREJUDICIAL EVIDENCE TOGETHER WITH EVIDENCE ALLEGEDLY ATTRIBUTING OTHER CRIMES TO THE DEFENDANT. THE DEFENDANT WAS DENIED A FAIR TRIAL BY REASON OF THE INTRODUCTION OF INFORMATION WHICH ALLEGEDLY ATTRIBUTED A [sic] DEFENDANT TO OTHER DRUG ACTIVITY. The evidence and testimony complained of by Appellant that relates to his appearance and his car were not improperly admitted by the trial court. The evidence and testimony were related to Appellant's physical appearance at the time of the criminal activity. Appellant's clothing, jewelry, and his vehicle were all items that properly went to identification of Appellant and were relevant and admissible pursuant to Evid. R. 401 and 402. There was no testimony or suggestion by the witnesses or the prosecution that Appellant's clothing, jewelry, or car were peculiar to a drug dealer or a courier profile. With respect to the testimony about State's Exhibit No. 5, this testimony was not improperly admitted. Appellant made a statement that he did not deliver any drugs to Beane but was only putting two people together. Exhibit No. 5 offered probative and relevant evidence, taken from the person of Appellant, that -12- directly contradicted Appellant's statement. Exhibit No. 5 was evidence of Appellant's connection with Miami, Florida and other drug dealers in the northeast Ohio area. This testimony was indeed relevant, material, and a rebuttal to Appellant's own statement. For all of the aforementioned reasons, Appellant's assignment of error five is overruled. Appellant's assignment of error six states: THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT ALLOWED STATEMENTS MADE BY THE DEFENDANT WITHOUT REGARD AS TO WHETHER THEY WERE RELEVANT OR MATERIAL TO THE ISSUES TO BE TRIED. Appellant suggests in support of the proposition embodied in this assignment of error that certain statements were improperly admitted, resulting in an unfair trial to Appellant. The first exchange occurred during the testimony of Agent John Clayton. Clayton testified that Seven Hundred Dollars ($700.00) was found in Appellant's pocket. Clayton testified that Appellant stated that it was gambling money. Clayton furthered testified that he complimented appellant on his expensive watch and then asked if it had been purchased with drug transaction proceeds. The record reflects that counsel for Appellant objected to this entire line of testimony by Agent Clayton. In response to the objection, the trial court admonished the witness, Agent Clayton, to just answer the question that was being asked. Counsel for Appellant did not request an instruction from the -13- trial court to the jury to disregard the statements nor was there a motion to strike the testimony. The record is clear that the objection was sustained and the witness admonished by the trial court. Secondarily, since there was no request from Appellant's counsel asking the trial court to strike this testimony and that the jury be advised to disregard it, this court is not inclined to conclude that this testimony was tantamount to a violation of Appellant's Sixth Amendment right to a fair trial. Appellant complains also of a question put to Agent Clayton about whether Appellant was presented with the same option to cooperate with the federal government as Christopher Beane. Unfortunately, this claimed error was waived because there was no objection by counsel for Appellant. Without objection and absent plain error, the failure of counsel to object constitutes a waiver. Lastly, Appellant complains of an exchange during the direct examination of Agent Daniel Moritz. Moritz testified that Appellant executed a waiver of rights, made some statements, and one of the statements was that he had put two people together. Moritz then testified that he made a determination that Appellant was being untruthful with him about his culpability. After this opinion was given by Agent Moritz, counsel for Appellant objected and moved to strike the opinion statement. The trial court then sustained the objection and sustained the motion to strike, but failed to instruct the jurors to disregard the opinion statement. -14- At the outset of the trial, the trial court also advised the jury with respect to the significance of an objection. In this regard, the trial court stated: Now, there are times during every trial where a lawyer will object to a question asked by the other lawyer or object to an exhibit offered by his opponent. Such objections raise legal questions, and it is the duty of the court, and the court alone, to rule upon them. If the court finds under the law that the objection is well-taken, it will be sustained, and you will either not hear the answer to the question so objected to or you will be asked to disregard an answer that has been blurted out over objection. However, you must understand that this lawsuit is to be decided solely upon answers that are permitted to be given under oath in open court. You, as the jury, are not permitted to infer any facts merely because a question was asked and it was not permitted to be answered. These instructions from the trial court very clearly explain to the jury the significance and result of an objection. The trial court further explained to the jury their role as exclusive judges of the facts which includes an evaluation of the credibility or believability of the witnesses. For these reasons enumerated, assignment of error six is overruled. Appellant's assignment of error seven states: THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OMITTED TO REQUIRE THE STATE TO PROVE VENUE BEYOND A REASONABLE DOUBT. Appellant is correct that the failure to instruct on an essential element of the crime charged is plain error. (Emphasis -15- added.) However, this rule of law is not viewed in a vacuum and there must be a failure to instruct as opposed to a nebulous instruction. The trial court read and explained the indictment in this case as part of his jury instructions, making it clear that the indictment informed Appellant of the crime with which he had been charged. The reading of the indictment specifically included the fact that the crime was alleged to have taken place in Cuyahoga County. The trial court went on to state "now, as to the indictment that was returned by the Grand Jury and read to you by the court, the defendant has entered a plea of not guilty. By such a plea, the Defendant denies the existence of each and every element and ingredient which, as a matter of law, goes to back up or constitute the offense charged in the indictment." Furthermore, the trial court stated "now, the rules of law which are given to you in these instructions apply to the indictment unless otherwise specifically stated." The trial court also gave a complete definition of reasonable doubt. It is important for this assignment of error to delineate the applicable rules regarding jury instructions in a criminal case. The accused is not prejudiced merely because the charge could have been improved in form. Mimms v. State (1865), 16 Ohio St. 221; Porello v. State (1928), 121 Ohio St. 280. A charge to a jury must be considered as a whole and cannot be tested by a part thereof. Koon v. State ( ), 30 Ohio App. 379. -16- In determining the question of prejudicial error in the instructions of the trial court to the jury the charge must be taken as a whole and the portion which is claimed to be erroneous must be considered in its relation to, and as affected by the other parts of it. Clark v. State (1927), 28 Ohio App. 64 Affd. (1928), 119 Ohio St. 162. Consequently, if the charge considered as a whole appears to be fair and proper and to state the law of the case correctly and in a way reasonably calculated to enable the jury to understand the rules of law which they are to apply to the evidence before them, the judgment will not be reversed because the language of some part of the charge may, if taken alone, be subject to criticism. Koppe v. State (1926), 21 Ohio App. 33. Following these dictates, the charge in the instant case when viewed in its entirety did not fail to instruct on the essential element of venue. A correct statement of law was given based on the entire charge. The indictment was read to the jury and explained to them. It clearly stated that this offense occurred in Cuyahoga County. The trial court expressly advised the jurors that the instructions applied to the indictment and reasonable doubt was an instruction given. Based on a review of the charge to the jury as a whole, there was no prejudice to Appellant on the issue of proof of venue in Cuyahoga County beyond a reasonable doubt. Assignment of error seven is overruled. Appellant's eighth assignment of error states: -17- THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED MOTIONS FOR JUDGMENT OF ACQUITTAL. In the case of State v. Bridgeman (1978), 55 Ohio St. 2d 26, the legal test for a decision on a motion for acquittal was stated. Viewing the evidence in a light most favorable to the prosecution, pursuant to Crim. R. 29(A), a court shall not order an entry of judgment 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 proved beyond a reasonable doubt. Appellant was not denied due process of law when the trial court overruled motions for judgment of acquittal. There was probative evidence regarding each and every material element of the crime with which Appellant was charged and reasonable minds certainly could have reached different conclusions as to whether each of those material elements had been proven beyond a reasonable doubt. Appellant's seventh assignment of error is without merit and is therefore overruled. Appellant's ninth and final assignment of error states: THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL. In support of this assignment of error, Appellant cites three different reasons for the claim of ineffective assistance of counsel. The first is counsel's failure to move for a dismissal on double jeopardy grounds. The second is that counsel -18- represented both Appellant and co-defendant, Butler. The third is counsel's failure to interject objections. It is the burden of the appellant to demonstrate a substantial violation of defense counsel's duties because a properly licensed attorney is presumably competent in the State of Ohio. State v. Williams (1969), 19 Ohio App. 2d 234. Furthermore, a defendant must not only allege a substantial violation but he or she also bears the burden of demonstrating operative facts to indicate the lack of competent counsel and also that the defendant was prejudiced by counsel's ineffectiveness. Citing State v. Bradley (1989), 42 Ohio St. 3d 136, this court held in State v. Knapp (September 26, 1991), Cuyahoga App. No. 60555 that the inability of Appellant to demonstrate the prejudicial effect of defense counsel's alleged deficient conduct...ipso facto results in the failure of the claim of ineffective assistance of counsel. In the instant case, the first criticism is unfounded as a matter of law. As we discussed in assigned error Two. Where the mistrial is granted at the appellant's request, double jeopardy does not bar a mistrial. As a matter of law, there is no valid argument that there was a substantial violation of counsel duties to Appellant. The second criticism does not rise to the level of ineffective assistance either. This court agrees with Appellee that an attorney representing Appellant who knew that he would -19- get a new jury that had not heard Butler's statement, would or should have requested a mistrial. Finally, the blanket suggestion that representing two co-defendants raises a conflict is an erroneous one. The record reflects that at the only time when the potential for conflict arose; counsel acted accordingly by requesting a mistrial. The last criticism is likewise without merit. The failure to object in isolated instances does not constitute ineffective assistance unless such a waiver is tantamount to a violation of Appellant's Sixth Amendment rights. This court found no such waivers in this case. Judgment and verdict affirmed. -20- 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. FRANCIS E. SWEENEY, P.J., and JOHN F. CORRIGAN, J., CONCUR. PETER ECONOMUS* JUDGE (*SITTING BY ASSIGNMENT: JUDGE PETER ECONOMUS, MAHONING COUNTY COMMON PLEAS COURT) 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .