COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60999 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : DAVID MITCHELL : : Defendant-Appellant : : DATE OF ANNOUNCEMENT AUGUST 20, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-246067 JUDGMENT: Affirmed in part, Reversed in part and Remanded for Resentencing. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES NANCY A. FUERST Cuyahoga County Prosecutor 330 Standard Building 8th Floor Justice Center Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: David Mitchell, defendant-appellant hereinafter Appellant timely appeals the judgment of the Cuyahoga County Court of Common Pleas convicting him of Aggravated Trafficking in violation of R.C. 2925.03, Drug Abuse in violation of R.C. 2925.11, and Possession of Criminal Tools in violation of R.C. 1 2923.24. Having reviewed the transcript of proceedings and the legal arguments of the parties, we affirm the judgment of the trial court. On or about November 11, 1989, two Cleveland police officers observed Appellant enter the front driver's side of a vehicle that contained two other individuals, one in the front passenger's seat and the other in the rear seat. The officers testified they observed Appellant abruptly pull from the curb. Thereafter, they followed Appellant westbound on Easton, a street known to the officers as one of high drug activity. According to the testimony of both officers, Appellant failed to come to a complete stop at a stop sign posted at the intersection of East 89th Street and Easton. After observing Appellant run the stop sign, the officers pulled Appellant over. Officer Ewing was the policeman who approached the driver's side of the vehicle. He testified that Appellant appeared to be very nervous, fidgety, and appeared to be trying to conceal something between his legs. Officer Ewing testified that because he was 1 Appellant was charged with one count of each offense. -3- unsure of what Appellant might be concealing he ordered him to exit the car and requested his driver's license. Officer Ewing testified that as Appellant was getting out of the car two pieces of a white substance, suspected by Ewing to be crack cocaine, fell to the ground. Officer Ewing picked the two pieces of white substance up from the ground, advised Appellant that he was under arrest, and then read him his constitutional rights. Ewing handcuffed Appellant and then conducted a search of Appellant's person. During the search of Appellant's person, Ewing testified that he found eight additional rocks of suspected crack cocaine in Appellant's left front pants pocket. According to Ewing, the ten rocks were loose and not packaged in any manner. Ewing further testified that the other two occupants were checked for identification and outstanding warrants. The two passengers who were checked did not have any outstanding warrants and the passenger in the front seat was in fact the owner of the car. The officers discovered a black pouch sticking out from under the driver's seat in plain view. The pouch was opened and it contained among other items a black gram scale and two glass pipes. According to Ewing, in response to his question of who did the pouch belong to, Appellant admitted that the contents of the pouch belonged to him. Finally, the car was released to the owner. Officer Johnson testified and corroborated the testimony of his partner, Officer Ewing. Johnson stated that he observed what -4- he characterized as moderate drug activity on Easton, which was in his opinion a high drug trafficking street. He observed Appellant enter the vehicle and drive off in a manner that brought the officers' attention to him because it seemed as if he wanted to get away from the area real quick. The officers followed Appellant, according to Johnson, to the intersection of East 89th Street and Easton where Appellant failed to come to a complete stop before making a right turn. Upon observing this, the officers stopped the vehicle. After pulling the car over, Johnson testified that Ewing approached the driver's side of the vehicle and he took the rear passenger side to watch the occupants. Ewing ordered the driver to exit the vehicle. When Johnson heard this, he changed positions and went to the driver's side rear so that he could observe the passengers, Appellant who had exited the automobile, and his partner. Johnson testified that Ewing informed him at this point that he had found the two rocks of suspected cocaine. It was Johnson's testimony that Appellant was then placed under arrest, handcuffed, and Appellant's person was searched to make sure that he did not have a weapon. Johnson testified that Ewing discovered eight more rocks of suspected cocaine in Appellant's left jacket pocket. According to Johnson, Ewing began talking to the other two occupants in the vehicle and during this time the officers discovered a black pouch under the driver's seat that contained drug paraphernalia. Johnson could not remember who specifically found the pouch, nor did he -5- remember Appellant's admission that the pouch belonged to Appellant. Nevertheless, Johnson testified that the pouch was Appellant's. When asked why he believed the pouch was Appellant's, Johnson's testimony was "the pouch was given back to him as his property, that pouch was brought to the district with the male, and as we were searching the pouch thoroughly, some of these items were found inside the pouch." During cross-examination, when asked to count the number of rocks presented at trial as being on the person of Appellant, Johnson counted fifteen rocks. Johnson later on redirect examination offered the explanation that once crack cocaine becomes drier it is very easy to break into smaller pieces. The last witness to testify on behalf of Appellee was an employee of the Cleveland Police Forensic Laboratory. She testified that, in her expert opinion and based on her test results, the contraband given to her for testing was positive for cocaine. She was unable to explain how or whether the rocks were broken up after her analysis of them. After Appellant's motion for acquittal was overruled, Appellant testified along with one other witness in his defense. Seandra Garner testified that she was the passenger in the front seat next to Appellant on the night in question. She testified that Appellant attended a party with her on 93rd Street and Easton. Upon leaving the party, Ms. Garner's testimony was that she let Appellant drive her car. She further testified that there was no specific reason for allowing Appellant to drive; she -6- just did. It was also Garner's testimony that a homosexual, with the appearance of a female, got into the car with them and sat in the rear seat on the passenger side. The person also had a black pouch around the waist. Garner recalled, in her testimony, being stopped by the Cleveland police. Garner testified that Appellant was not acting nervous or fidgety, nor was he trying to hide any drugs underneath his legs. Garner testified that Appellant was calm and curious about why he was being pulled over by the police. Garner did not recall any drugs on or about Appellant's person, nor did she remember seeing any drugs fall to the ground. On cross-examination, Garner stated that Appellant was engaged to her sister. She further testified that she was also searched by the police on the night in question, and she had a small pocket knife on her. She stated that no crack cocaine was being smoked in the car. Garner also testified that there was no specific reason why she let Appellant drive and that it was not because she was intoxicated. She, like Appellant, recalled that the third party in the back seat of the car had a black pouch. However, Garner also testified that the pouch was found under the passenger's seat instead of the driver's seat. Appellant was the final witness to testify. Appellant test- ified that he was on probation for a drug trafficking offense in 1984. Appellant stated that he and Ms. Garner attended a party on Easton. As they were leaving the party, Appellant was approached by what he believed to be a female who needed a ride. -7- Appellant agreed to give the person a ride and also testified that the person, who he believed to be a female, had a black pouch around the waist. The person got into the car. It was Appellant's testimony that before they got into the car the police were sitting right behind the car. Appellant further testified that they pulled off and the police followed him to the stop sign. He turned the corner and the officers turned their lights on and pulled the car over. Appellant testified that he did not recall making any type of illegal stop. After being pulled over, Appellant testified that he was perfectly still, not nervous or fidgety, and he kept his hands on the steering wheel. He further testified that he did not attempt to conceal anything between his legs. Appellant denied ownership or possession of the suspected rocks of crack cocaine or the black pouch. After these unequivocal denials by Appellant during his testimony, the trial court rendered its judgment in favor of Appellee, convicting Appellant of all three counts with which he had been charged. In support of his appeal, Appellant asserts four assignments of error. The first assignment of error states: THE TRIAL COURT ERRONEOUSLY OVERRULED APPELLANT'S CRIMINAL RULE 29 MOTION FOR ACQUITTAL AS THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION FOR AGGRAVATED TRAFFICKING IN DRUGS. The issue raised by this assignment of error is whether there was sufficient evidence, at the end of the State of Ohio's -8- case, for the trial court to overrule Appellant's motion for acquittal pursuant to Crim. R. 29. The legal test, for the resolution of this issue, is embodied in the case of State v. Bridgeman (1978), 55 Ohio St.2d 26 holds that the test for a motion for acquittal is that 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. In the instant case, Appellant was charged with a violation of R.C. 2925.03(A)(2), Trafficking in drugs, which states as follows: (A) No person shall knowingly do any of the following: (2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe such drug is intended for sale or resale by the offender or another; Appellant argues that an analysis of the physical evidence, testimony, and inferences derived therefrom demonstrate that the State of Ohio failed to prove each and every element of Trafficking in drugs, in violation of R.C. 2925.03(A)(2). Appellant focuses on what he alleges to be insufficient evidence of the mens rea element of knowledge. According to this proposition, there was no evidence of Appellant's knowledge or that Appellant had reasonable cause to believe that the drugs were intended for sale or resale by himself or another. Finally, -9- Appellant argues that the crack cocaine was not packaged in a way typical of drug sales nor did the officers observe Appellant actually conducting a drug transaction. Undoubtedly, the State of Ohio utilized circumstantial evidence to prove its case of Trafficking in drugs in violation R.C. 2925.03(A)(2). The use of circumstantial evidence in the proof of a criminal case is no longer governed by the reasonable theory of innocence concept contained in State v. Kulig (1974), 37 Ohio St.2d 157. Instead, this court is guided by the rule of law contained in State v. Jenks (1991), 61 Ohio St.3d 259. In Jenks, the Ohio Supreme Court expressly overruled Kulig, stating: 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. Therefore, where the jury is properly and adequately instructed as to the standards for reasonable doubt a special instruction as to circumstan- tial evidence is not required. (Holland v. United States (1954), 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150, followed; State v. Kulig (1974), 37 Ohio St.2d 157, 66 O.O.2d 351, 309 N.E.2d 897, overruled.) Id. at Syllabus 1. In the instant case, the trial court conducted a bench trial. Therefore, this court will give deference to the trial court's understanding of the statutory definition of proof beyond a reasonable doubt contained in R.C. 2901.05(D). Jenks makes it clear that when the R.C. 2901.05(D) instruction is proper and -10- adequate, as a matter of law, a special instruction pertaining to circumstantial evidence is not required. Also, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. We, therefore, turn to an evaluation of the circumstantial evidence presented in this case. It is imperative to note that this examination of the circumstantial evidence will not be reiterated in the court's discussion of assignment of error two. A reasonable inference can be drawn from the presence of the scale that Appellant had knowledge that the cocaine was intended for sale by him. There was evidence before the fact finder that Appellant admitted to the ownership of the black pouch and its contents. Likewise, a reasonable inference can be drawn from the possession of over three quarters of a gram of crack cocaine, in eight rocks, that the crack cocaine was intended for sale by Appellant. Despite Ewing's testimony that crack cocaine is typically bagged or in a container, there exists in this record other evidence (the scale) upon which a reasonable trier of fact could have relied to conclude that the mens rea element of knowledge was proven beyond a reasonable doubt. This court is not prepared to speculate as to what types of drug transactions Appellant would have engaged in at the party. Again, Appellant's reference to the crack pipes which was also found in the pouch as being indicative of personal use of the scale, mentioned previously, are sufficient facts which the fact finder could have relied in reaching its judgment. In fact, the -11- significance of the scale is acknowledged by Appellant. While it is true that the personal items contained in the black pouch that supposedly linked Appellant to the pouch were never produced or adequately described at trial, the evidence presented that Appellant admitted ownership could have been relied on by the trier of fact to link Appellant to the pouch. Where this type of other evidence exists, this reviewing court cannot substitute a decision for the trier of facts as to what reasonable inferences from the evidence to utilize in reaching a judgment. Both at the close of the State of Ohio's case and at the close of Appellant's, the evidence was such that reasonable minds could reach different conclusions as to whether the essential element of knowledge or constructive knowledge had been proven beyond a reasonable doubt. Appellant's assignment of error one is overruled. Appellant's second assignment of error states: THE VERDICT OF GUILTY AS TO AGGRAVATED TRAFFICKING IN DRUGS IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. [sic] The guidelines for evaluating whether the decision of a trial court is against the manifest weight of the evidence are enumerated in State v. Mattison (1985), 23 Ohio App.3d 10. They are as follows: 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. what was not proved; 5. the certainty of the evidence; 6. the reliability of the evidence; -12- 7. whether a witness testimony is self-serving; 8. whether the evidence is vague, uncertain, conflicting or fragmentary. The third person, transvestite, who rode in the car unident- ified by Appellant or the other passenger, with a black pouch around the waist is self-serving, unreliable, and somewhat incredible. Appellant was unable to name the third person, thought it was a female, and did not offer much of an explanation as to how the third person got into the vehicle. The testimony of Appellant is both contradicted and uncertain as it relates to the presence of the crack cocaine. Finally, for all the reasons discussed under assignment of error one, the judgments of the trial court convicting Appellant of Aggravated Trafficking and Possession of Criminal Tools was not against the manifest weight of the evidence. Thus, assignment of error two is overruled. Appellant's assignment of error three states as follows: THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN CONTRAVENTION OF HIS CONSTITUTIONAL RIGHT TO COUNSEL. A. TRIAL COUNSEL FAILED TO PURSUE A MOTION TO SUPPRESS THE EVIDENCE. B. TRIAL COUNSEL FAILED TO OBJECT TO THE IMPOSITION OF DUAL SENTENCES FOR THE ALLIED OFFENSES OF POSSESSION AND TRANSPORTATION OF THE SAME CONTROLLED SUBSTANCE. The United States Supreme Court, in Strickland v. Washington (1984), 466 U.S. 668, has established the rules of law relating to claims of ineffective assistance of counsel in violation of the Sixth Amendment. The test is two-pronged for a convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction. -13- The first step in the analysis is whether the attorney's performance was deficient. Deficiency is evaluated on a reason- ableness standard, considering all the circumstances was the attorney's performance reasonably effective assistance, counsel's performance must fall below an objective standard of reasonable- ness. Judicial scrutiny of counsel's performance must be highly deferential, eliminate the distorting effects of hindsight, evaluate the conduct from counsel's perspective while reconstruc- ting the circumstances, and indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at Syllabus 2(a). The second and final step in the analysis requires Appellant to show that the deficient performance prejudiced the defense so as to deprive the appellant of a fair trial. The test, with regard to the required showing of prejudice, mandates that Appellant show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would be different. In support of Appellant's claim, he alleges failures on the part of trial counsel, which culminate in a Sixth Amendment violation. The first was counsel's failure to pursue a motion to suppress the evidence. The second was trial counsel's failure to object to the imposition of dual sentences for allied offenses of similar import. The use of a reasonableness standard requires this court to wonder why counsel did not pursue either of these arguments on -14- his client's behalf. Clearly, a motion to suppress was an appropriate avenue for Appellant's trial counsel to pursue. The failure of counsel to object to the manner in which the trial court imposed sentence is also an unreasonable omission under the reasonableness standard that this court must employ. Since we have concluded that both omissions were unreasonable, the second prong of Strickland requires that this court evaluate whether either of these omissions were outcome determinative. Trial counsel filed a motion to suppress on May 15, 1990 at 3:22 p.m. Appellant was tried and sentenced after a bench trial on May 17, 1990. The record nor the trial court's docket reflect how, if at all, the motion to suppress was disposed of. However, the testimony of the Cleveland Police Officers was that Appellant sped away from the curb, bringing their attention to him and then he failed to come to a complete stop at the intersection of East 89th Street and Easton. It was this traffic violation that caused the officers to stop the car that Appellant was driving. Officer Ewing testified that Appellant was fidgety; Appellant's testimony was that he was still with his hands on the steering wheel. Officer Ewing says the crack cocaine fell to the ground; Appellant denies having any crack cocaine. Given the fact that the trial court apparently believed the officer's testimony during the trial, the trial court in all reasonable probability would have believed the officers in an evidentiary hearing on a motion to suppress. Therefore, this court concludes -15- that in all reasonable probability the result would have been the same had counsel pursued the twelfth hour motion to suppress evidence. The second omission, however, may have in all reasonable probability produced a different result as it relates to sentencing. On this issue, for the reasons set forth under assignment of error four, this court will reverse and remand the case for a resentencing consistent with this court's discussion of sentencing for allied offenses of similar import. Appellant's fourth assignment of error states: THE TRIAL COURT COMMITTED PLAIN ERROR BY IMPOSING SEPARATE SENTENCES ON BOTH THE TRANSPORTATION AND THE POSSESSION OF THE SAME CONTROLLED SUBSTANCE. R.C. 2941.25(A), in pertinent part, states: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. In the case of State v. Lovelace (June 27, 1991), Cuyahoga App. No. 58657, unreported, this court recognized the cases of State v. Roberts (1980), 62 Ohio St.2d 170 and State v. Jennings (1987), 42 Ohio App.3d 179 and their holding. In Roberts, the Ohio Supreme Court held that the offense of possession and sale of narcotics were allied offenses of similar import where both charges were based on a single sale, the same parties and same type and quantity of drugs. Likewise, in Jennings, the Hamilton County Court of Appeals adhered to the rule that when charges of -16- both possession and transportation of a controlled substance are based on a single transaction involving the same type and quantity of drugs, and the defendant did not possess any quantity in excess of the amount transported, the defendant may be indicted for both possession and transportation of a controlled substance, but can be convicted of only one offense under R.C. 2941.25(A). Finally, we are not persuaded by the State of Ohio's reasoning that there were four separate quantities of cocaine. Therefore, consistent with Roberts and Jennings, this assignment of error has merit. The sentences imposed are reversed, without disturbing the judgments of guilty, and the case is remanded for resentencing consistent with this opinion. Judgment accordingly. -17- This cause is affirmed in part, reversed in part, and remanded for resentencing. It is ordered that Appellant and Appellee share the 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 FRANCIS E. 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. .