COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60129 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : RAYMOND NORWOOD : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JUNE 11, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-246543 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES DAVID L. DOUGHTEN Cuyahoga County Prosecutor 4403 St. Clair Avenue 8th Floor Justice Center Cleveland, Ohio 44103 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Raymond Norwood defendant-appellant, hereinafter Appel- lant timely appeals his convictions for Trafficking in drugs in violation of R.C. 2925.03 and Possession of Criminal Tools in violation of R.C. 2923.24. For the reasons set forth below, we affirm. On November 14, 1989, three Cleveland Police Detectives were patrolling in the vicinity of 2542 East 51st Street in Cleveland, Ohio, an area with urban housing projects. The detectives testified that they were flagged down by an unknown man, who asked the detectives for a quarter to get coffee. Detective Oxley testified that he gave the man a dollar. The man offered his thanks and then asked the officers if they would be interested in a drug house. When the officers replied that they would, he gave them an address of 2542 East 51st Street. Consequently, the officers went to the Cuyahoga Metropolitan Housing Authority rental office. A secretary in the office advised the officers that apartments 472 and 473 were vacant. Detectives Oxley, Deli, and Kovach proceeded to 2542 East 51st Street to further investigate. According to both Detective Oxley and Detective Deli, who were the only two officers to testify, apartment 472 was bordered by a sheet of plywood nailed from the outside, which covered the doorway. There was only a small space of approximately two and one half inches at the bottom between the plywood and the floor. Detective Deli knocked on the plywood and a voice, very close on the other side of the door answered, "what do you want?" -3- Detective Deli responded "police." After this response by Detec- tive Deli, the officers heard scuffling sounds and movements coming from inside the apartment. According to the officers' testimony, Detective Deli got down on his hands and knees and looked into the apartment through the gap between the plywood and the floor. Detective Deli observed a stack of money and plastic bags of crack cocaine on the floor. After this observation, the officers decided to enter the apartment. Detective Deli tore the plywood off the door facing, and he and Detective Oxley entered the apartment. Detective Kovach covered the entrance and the hallway. Once inside of apartment 472, the detectives confiscated two hundred and twenty- three (223) packets of crack cocaine, an intercom, cash boxes, and One Hundred Seventy-Four Dollars ($174.00). Interestingly, no one was in the apartment once the officers gained entry, even though they had just heard a voice inside. When the detectives got to the kitchen during their search of the apartment, they observed an open kitchen window. When they looked out of the kitchen window, they observed an adjacent window within reaching distance. The officers surmised that the person inside apartment 472 when they knocked must have climbed into this adjacent window. The fact that there was an undisturbed bush below the 472 window, no footprints on the ground, or anyone laying on the ground strengthened the officers premise that the person had to have climbed through the adjacent window, as opposed to jumping to the ground thirty feet below. -4- The three officers proceeded to the front door of the adjacent apartment and knocked. Detectives Deli and Oxley both testified that the same voice they had just heard in 472 now responded at 473 saying "who is it?" Detective Deli responded "police." After Deli's response, the door was opened by Appellant. The police officers did not find anyone else in apartment 473. Both officers testified that Appellant admitted that he had been in both apartments. Appellant was placed under arrest. The defense called two witnesses, Appellant and his mother. Appellant testified that he had an argument with his mother in the early morning hours of November 14, 1989. Despite Appellant's mother's testimony that to her knowledge Appellant had never participated in drug usage or sale, Appellant testified that the argument with his mother was over his drug problem and the fact that he was stealing from her and selling her belongings to support his drug habit. It was Appellant's testimony that after this argument his mother put him out of the house. His mother testified that the argument had been over a job and a high school diploma. She further testified that she put him out after he woke up. It was Appellant's testimony that he was in apartment 473 sleeping when the officers knocked and awakened him. He further testified that the officers asked him "where are the drugs?" It was Appellant's testimony that while the police were talking to him, drug customers were coming up to apartment 472 to buy drugs. -5- It was only at this point, according to Appellant's testimony, that Detective Deli went and looked under the makeshift plywood door at 472. Appellant further testified that he was trying to explain to the officers that he had been in apartment 472 on another day. Finally, Appellant did not have friends in 2542 E. 51st Street, and Appellant knew that only six people lived in the building and that seven of the nine units were vacant. After hearing the testimony and reviewing the physical evidence, the jury found Appellant guilty on all three counts of the indictment. Appellant's first assignment of error states: THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE. The essence of Appellant's argument, embodied in this assignment of error is that no reasonable jury could have found that Appellee proved its case with credible evidence beyond a reasonable doubt. We disagree. Since circumstantial evidence may be the basis for such credible evidence. The recent Ohio Supreme Court case, State v. Jenks (1991), 61 Ohio St. 3d 259, provides sound rules of law as it relates to proof of a case by circumstantial evidence. Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. -6- Therefore, where the jury is properly and adequately instructed as to the standards for reasonable doubt a special instruction as to circumstantial evidence is not required. Id. at Syllabus 1. In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: 1. The reviewing court is not required to accept as true the incredible; 2. whether the evidence is uncontradicted; 3. whether a witness was impeached; 4. wheat was not proved; 5. the certainty of the evidence; 6. the reliability of the evidence; 7. whether a witness' testimony is self-serving; 8. whether the evidence is vague, uncertain, conflicting or fragmentary. State v. Mattison (1985), 23 Ohio App. 3d 10. This court will begin the analysis of the evidence, as it applies to the aforementioned rules of law, with the testimony of Appellant. Appellant testified that the argument with his mother was regarding his drug problem and the fact that he had been stealing from her and selling her belongings to support his habit. When Appellant's mother testified, it was her testimony that to her knowledge Appellant had never participated in drug usage or sale despite the alleged argument that took place in the early morning hours of November 14, 1989. It was Appellant getting a job and a high school diploma. -7- Although Appellant did not have any friends residing at 2542 East 51st Street, Appellant knew that six people lived in the building and that seven of the nine units in the building were vacant. Additionally, Appellant, during his direct examination, volunteered that the people that were coming in the building while the police were there with him were drug customers. Appellant knew this contrary to his claimed unfamiliarity with apartment 472 and the drug business. Lastly, Appellant admitted to being in the apartment. The testimony of the Cleveland police officers provided sufficient circumstantial evidence to convince a reasonable jury. Both officers testified that the voice they heard in 472 was close on the other side of the door and was the same voice they heard in 473, the voice of Appellant. Both officers heard a scuffling noise once it was announced that they were in fact the police. Based on this testimony, it was reasonable to conclude that an individual was inside 472. The next question was where did the person go. Both officers testified that the window adjacent to the window of 473 was open, that the 473 window was close enough for a person to climb in, and that the bushes immediately below the window were not disturbed as it clearly would be if a person landed from thirty feet above the ground. In fact, Detective Oxley testified that the person could have climbed into the window of 473. Thus, it would not be an unreasonable conclusion for the jury that the only escape route -8- used on the day in question was a climb into the adjacent window of 473. In considering the Mattison, supra, guidelines, the prosecution's theory is not incredible nor is the evidence used to support it. The evidence contradictions merely raise the question of credibility not impossibility and credibility evaluations are for the trier of fact. The evidence was certain and reliable that someone was in 472 and it is a reasonable inference that the person climbed into the adjacent window of 473. Appellant's testimony could be deemed self-serving. Appellant's first assignment of error is overruled. Appellant's second assignment of error states: THE APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL. Appellant takes the position, in support of this assignment of error, that he was denied effective assistance of counsel when during both Appellant's and his mother's direct examination counsel for Appellant elicited that Appellant had been arrested for domestic violence, robbery, and possession of a marijuana joint. These are all inadmissible two of the offenses are misdemeanors. Appellant was never convicted of any of the three. Appellant correctly argues that the introduction of these prior criminal arrests was an error, since they all involved merely arrests and no convictions and in two instances were misdemeanors. This cannot be deemed sound trial strategy by Appellant's counsel. -9- In Strickland v. Washington (1984), 466 U.S. 668, the United States Supreme Court established a two prong test to evaluate whether there has been ineffective assistance of counsel in violation of the person's constitutional rights being represented. The first prong is whether there was a substantial violation by counsel of an essential duty to his or her client. The second prong, if the first inquiry is answered in the affirmative, is whether there is a reasonable probability that, absent the error, the jury would have reasonable doubt respecting guilt. This test for prejudice requires that the reviewing court look at the totality of the circumstances to determine whether Appellant has met the burden of demonstrating that the decision reached would likely have been a different one but for the errors. Id. at . The record, in the instant case, contains support for the verdict reached by the jury without having to make unreasonable inferences from the circumstantial evidence. There is also the question of an admission by Appellant that he was in 472. Appel- lant's attempts to explain his statement, in addition to the discrepancies between his and his mother's testimony, are issues of credibility reserved for the trier of fact. There was someone in 472 when the officers knocked and it is not an unreasonable inference that the person escaped into 473, particularly where there was no evidence of the ground or bushes being disturbed. -10- Consequently, we find that Appellant has failed to establish that his guilty verdict would likely have been different but for the errors of his counsel. Judgment affirmed. -11- 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. PATTON, P.J., and JAMES D. SWEENEY, J., CONCUR. PATRICIA A. BLACKMON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .