COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60970 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION HOSIE HARRIS, JR. : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 20, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-248,117 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JOSEPH RUSSO, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: PATRICK M. FARRELL Attorney at Law 21430 Lorain Road Fairview Park, Ohio 44126 - 2 - FRANCIS E. SWEENEY, P.J.: Defendant-appellant, Hosie Harris, Jr., was indicted by the Cuyahoga County Grand Jury on March 8, 1990 in a three-count indictment consisting of two counts of drug trafficking in viola- tion of R.C. 2925.03 and one count of possession of criminal tools in violation of R.C. 2923.24. He pleaded not guilty to all counts. After a bench trial, appellant was found guilty on one count of drug trafficking in violation of R.C. 2925.03(A)(1) and not guilty on the second count of drug trafficking. The trial court granted appellant's Crim. R. 29 motion for acquittal with respect to count three, possession of criminal tools. Appellant timely appeals his conviction. For the reasons set forth below, we affirm. The facts giving rise to this appeal are as follows: On January 3, 1990, at approximately 3:00 p.m., Detective Sharon Dickerson observed an informant make a controlled purchase of marijuana from co-defendant, Louis Ward, at the H & K Deli. Standing to the left of Det. Dickerson, the informant handed Mr. Ward a ten dollar bill under a plexi-glass countertop and re- ceived a foil packet containing marijuana. Det. Dickerson stated that appellant, owner of the H & K Deli, sat two to three feet directly behind Mr. Ward when the transaction took place. Det. Dickerson testified appellant looked directly at her and the - 2 - informant during the transaction and that a conversation of some sort was taking place between appellant and Ward during the transaction. Det. Dickerson also stated that a second co-defen- dant, Ricardo Stoval, who was later discovered with the buy money in his pos-session, was standing behind the counter with another male. Approximately three to five minutes after Det. Dickerson made the controlled buy, Detective Randall Bergeon and members of the SWAT unit executed a search warrant on the premises of the H & K Deli. Det. Bergeon stated that after SWAT had entered and secured all persons inside, he proceeded to search the individu- als kneel-ing on the floor. Det. Bergeon found over one thousand dollars on appellant. After searching the individuals, Det. Bergeon proceeded to search the store. Det. Bergeon found a plastic bag with fifty-one packets containing marijuana located in a hole in the ceiling of a storage area within the store. In the storage area in which the marijuana was found, Det. Bergeon also noticed various items found in the store such as paper bags, cups and napkins. Finally, after reading the defendants their rights, Det. Bergeon testified appellant stated, "I know who did this, I am going to get the son of a bitch." On cross-examination, Det. Bergeon stated he found two foil packets of marijuana and one hundred twenty-three dollars on Freddie Beamon, who was not a co-defendant in the instant trial. - 3 - Det. Bergeon also stated he had information which placed Freddie Beamon near a toilette in which marijuana was found during the execution of the search warrant. Finally, the packets of mari- juana found on Freddie Beamon resembled the packets found in the ceiling and the packet bought by the informant from Louis Ward. Appellant testified on his own behalf. Appellant stated that Freddie Beamon worked the cash register the whole day and that Louis Ward did not work the register that day. Appellant stated that at approximately 2:45 p.m., he cleaned out the cash register and had collected rent from the renters upstairs. Appellant denied observing the controlled purchase of marijuana, stating that it would have been impossible for him to have seen anything given the way the counter is set up. Appellant further denied any knowledge of the marijuana in the ceiling, stating that he seldom works in the store and that he never goes into the storage rooms. Louis Ward also testified for the defense. He stated he came into the store at approximately 3:10 p.m. to quit his job there. He also stated that Freddie Beamon was working at the counter. Based upon the above evidence, the trial court found appel- lant guilty of drug trafficking/sale of marijuana in violation of R.C. 2925.03. Appellant appeals, raising two assignments of error. Appellant's first assignment of error is as follows: - 4 - THE TRIAL COURT ERRED IN CONVICTING HOSIE HARRIS, JR. WHEN THE MANIFEST WEIGHT OF THE EVIDENCE FAILED TO SHOW BEYOND A REASONABLE DOUBT THAT HE WAS GUILTY OF ANY CRIMINAL CONDUCT. Appellant argues the verdict is against the manifest weight of the evidence. This argument lacks merit. In State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, the Ohio Supreme Court stated: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evi- dence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant in- quiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Vir- ginia [1979], 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560, followed.) In reviewing both weight and sufficiency of the evidence, the same test is applied. Jenks, supra, at 278. Moreover, the court noted circumstantial evidence and direct evidence inherent- ly pos-sess the same probative value and, therefore, should be subjected to the same standard. Jenks, supra, paragraph one of the syllabus. The credibility of testimony and the weight of evidence are primarily matters for the trier of fact. The ver- dict will not be disturbed on appeal unless the appellate court finds that reasonable minds could not reach the conclusion reach- ed by the trier of fact. Id. at 273. - 5 - The drug trafficking statute (R.C. 2925.03[A][1]) provides in pertinent part that no person shall knowingly sell or offer to sell a controlled substance in an amount less than the minimum bulk amount. Moreover, the complicity statute (R.C. 2923.03) provides in pertinent part that no person, acting with the kind of culpability required for the commission of an offense, shall soli-cit or procure another to commit the offense, or aid or abet another in committing the offense. In the present case, we conclude the verdict is not against the manifest weight of the evidence. Det. Dickerson testified to having observed a controlled drug buy between an informant and appellant's employee, Louis Ward, which took place directly in front of appellant. Det. Dickerson stated appellant looked directly at her and the informant when the transaction took place and that a conversation of some sort was taking place between appellant and Ward. Furthermore, the testimony of Det. Randall Bergeon lends support to the state's case in chief. Det. Bergeon testified to discovering fifty-one packets of marijuana hidden in the ceiling in appellant's business premises. Further, Det. Bergeon testified that, upon reading the defendants their rights, appellant stated, "I know who did this, I am going to get the son of a bitch." Thus, sufficient evidence was presented to support a conviction for trafficking in drugs. The trial judge was free to find the state's witnesses more credible than appellant's. - 6 - Accordingly, appellant's first assignment of error is over- ruled. Appellant's second assignment of error follows: HOSIE HARRIS, JR. WAS DENIED A FAIR TRIAL DUE TO THE CONFLICT OF INTEREST BETWEEN THE CO- DEFENDANTS AND THE JOINT REPRESENTATION THEIR ATTORNEY PROVIDED THEM. Appellant argues he was denied effective assistance of coun- sel due to his trial counsel's joint representation of himself and his co-defendants, Louis Ward and Ricardo Stoval. Appellant con-tends each co-defendant had different levels of involvement and, thus, had different levels of suspicion thrust upon him. Therefore, appellant asserts a conflict of interest existed between the co-defendants so as to preclude joint representation by counsel. This argument lacks merit. In order to establish a violation of his Sixth Amendment right to effective assistance of counsel, a defendant who raised no objection to joint representation at trial must demonstrate that an actual conflict of interest adversely affected his law- yer's performance. State v. Manross (1988), 40 Ohio St.3d 180, 182. A lawyer represents conflicting interests when it is his duty to one client to contend for that which duty to another client requires him to oppose. Id. There is no conflict where the two defenses do not result in one assigning blame to the other and where both defendants have a common interest in attack- ing the credibility of the prosecution witness. Id. - 7 - In the present case, we can find no conflict of interest between appellant and his co-defendants. In fact, both appellant and co-defendant Louis Ward attempted to assign blame on Freddie Beamon. Appellant testified that Louis Ward did not work behind the counter on the day on which the controlled drug buy was made and the search warrant executed. Rather, appellant stated Fred- die Beamon worked behind the counter at the cash register. Additionally, Louis Ward testified that he entered the H & K Deli at approximately 3:10 p.m. and observed Freddie Beamon working behind the counter. Thus, both witnesses assigned blame on another indi-vidual and not on any of the co-defendants repre- sented by the same trial counsel. Moreover, each co-defendant had a common interest in attacking the credibility of the prose- cution witnesses through a thorough and vigorous cross-examina- tion conducted by trial coun-sel. Accordingly, appellant's second assignment of error lacks merit. Judgment affirmed. - 8 - 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 Cuyahoga County Court of Common Pleas 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, J. BLACKMON, J. CONCUR PRESIDING JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .