COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66409 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOSEPH MARSHALL : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 3, 1995 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM COURT OF COMMON PLEAS CASE NO. CR-300450 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor DAVID SHELDON (#0040523) JOHN W. MONROE Assistant County Prosecutors Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender VALERIE R. ARBIE (#0061962) 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113 - 2 - SPELLACY, P.J.: Defendant-appellant Joseph Marshall appeals convictions for drug violations in CR-300450 and raises five assignments of error: I. JOSEPH MARSHALL WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN HIS TRIAL COUNSEL FAILED TO FILE AN AFFIDAVIT OF INDIGENCE REGARDING HIS ABILITY TO PAY THE MANDATORY FINES OF $10,000. II. JOSEPH MARSHALL WAS DENIED DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT WHEN THE TRIAL COURT ORDERED A FORFEITURE OF THE MONEY AND PAGER SEIZED AT THE TIME OF ARREST BECAUSE THE EVIDENCE PRESENTED BY THE STATE DID NOT PROVE THAT THE MONEY AND PAGER WERE CONTRABAND BY A PREPONDERANCE OF THE EVIDENCE. III. THE VERDICT FINDING JOSEPH MARSHALL GUILTY OF DRUG TRAFFICKING (DELIVERY) AND POSSESSION OF COCAINE WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE WAS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSE HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. IV. THE DRUG TRAFFICKING CONVICTIONS ARE ALLIED OFFENSES OF SIMILAR IMPORT UNDER R.C. 2941.25, AND THE SEPARATE CONVICTIONS VIOLATED APPELLANT'S CONSTITUTIONAL RIGHTS AGAINST DOUBLE JEOPARDY GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. V. JOSEPH MARSHALL'S RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED WHEN HE WAS IMPROPERLY DENIED A CRIM.R. 29 - 3 - ACQUITTAL BECAUSE HIS CONVICTIONS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE. I. Marshall was indicted for drug trafficking, in violation of 1 R.C. 2925.03(A)(7) , with a violence specification based on a 1993 conviction for carrying a concealed weapon; drug trafficking, in violation of R.C. 2925.03(A)(6), with the violence specification; drug trafficking, in violation of R.C. 2923.05(A)(2), with the violence specification; and possessing criminal tools (pager, money, car), in violation of R.C. 2923.24. Marshall stipulated to the violence specification before trial. 1 R.C. 2925.03 provides, in part: (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 the controlled substance is intended for sale or resale by the offender or another; * * * (6) Possess a controlled substance in an amount equal to or exceeding three times the bulk amount, but in an amount less than one hundred times that amount; (7) Sell or offer to sell a controlled substance in an amount equal to or exceeding three times the bulk amount, but in an amount less than one hundred times that amount; ***. - 4 - A jury found Marshall guilty of drug trafficking, in violation of R.C. 2925.03(A)(6), and drug trafficking, in violation of R.C. 2925.03(A)(2). The jury found Marshall not guilty of drug trafficking, in violation of R.C. 2925.03(A)(7), and possessing criminal tools, in violation of R.C. 2923.24. The trial court sentenced Marshall to four to fifteen years, with three years actual, for the offense of drug trafficking, in violation of R.C. 2925.03(A)(6), and four to ten years for the offense of drug trafficking, in violation of R.C. 2925.03(A)(2). The trial court fined Marshall five thousand dollars for each offense. The trial court further ordered the forfeiture of the cocaine, pager, and money; it found Marshall's car not subject to forfeiture. II. The following evidence was adduced at trial: After he and his wife were arrested for drug offenses, Joe Lee Bryant agreed to lead police officers to his drug supplier. Bryant paged the supplier, who went by the names "Itchy" and "Joe." When the supplier called, Bryant ordered two ounces of cocaine and set up a time for the supplier to deliver the drugs to Bryant's apartment. At the pre-arranged time, Bryant and several police officers were waiting in the apartment. When the supplier failed to appear, Bryant paged him again. The supplier called and told Bryant that he was late because he had to stop at a liquor store. - 5 - Sometime later, the supplier rang the buzzer to the front door of Bryant's apartment building and Bryant buzzed him in. While the supplier was on his way up to the apartment, the police officers handcuffed Bryant to the refrigerator. When Marshall and a companion, James Roebuck, knocked at the apartment door they were arrested. Bryant, still handcuffed to the refrigerator, then identified Marshall as the supplier by looking at his driver's license, brought to him by one of the police officers. Police officers found $1456 and a pager on Marshall. They found a brown paper bag, razor blade, and a straight shooter on Roebuck. The brown paper bag contained two plastic baggies: one with 28.2 grams of cocaine and one with 29.07 grams of cocaine. A forensic scientist testified that there are approximately twenty- eight grams in an ounce. Roebuck testified that Marshall picked him up at his home and they stopped at a liquor store on their way to Bryant's apartment. Roebuck further testified that when they parked at Bryant's apartment, Marshall instructed him to place the brown paper bag in his coat. Roebuck admitted that he knew the package contained cocaine. On cross-examination Roebuck testified that he was receiving a substantial break by testifying against Marshall. On re-direct examination Roebuck testified that he hoped for a deal but had not received any promises. Bryant testified that he had pleaded guilty - 6 - to a drug trafficking offense and received a two-year sentence. His wife was never charged. Marshall's sister-in-law testified that Marshall works in an auto-repair shop and does landscaping. She further testified that Marshall wears a pager because one of his children has a heart condition. The operator of a lounge and delicatessen testified that around the time of Marshall's arrest he cashed two winning lottery tickets for Marshall and that each ticket was worth five hundred dollars. III. In his first assignment of error, Marshall contends he received ineffective assistance of counsel because his trial counsel failed to file an affidavit of indigency for the purpose of avoiding the payment of mandatory fines. The failure to file an affidavit alleging that a defendant is indigent and unable to pay a mandatory fine only constitutes ineffective assistance of counsel when the record shows a reasonable probability that the trial court would have found the defendant indigent and unable to pay the fine had the affidavit been filed. State v. Huffman (Jan. 26, 1995), Cuyahoga App. No. 63938, unreported; State v. Burton (April 14, 1994), Cuyahoga App. No. 64710, unreported; State v. Avant (Nov. 23, 1993), Marion App. - 7 - No. 9-93-12, unreported; see, also, State v. Powell (1992), 78 Ohio App.3d 784. The trial court appointed appellate counsel after Marshall's trial counsel stated that Marshall had told him that he had no funds. Indigency for retaining counsel, however, is distinct from indigency for payment of fines. State v. Lefever (1993), 91 Ohio App.3d 301, 308; State v. Reitz (1991), 74 Ohio App.3d 33, 35. We find the record fails to show a reasonable probability that Marshall would have been found indigent and unable to pay mandatory fines if the affidavit of indigency had been filed. Accordingly, Marshall's first assignment of error is not well taken. IV. In his second assignment of error, Marshall contends that the trial court erred when it ordered the forfeiture of his money and pager. Forfeiture proceedings are "criminal in nature but civil in form." State v. Clark (1989), 63 Ohio App.3d 52, 56. Consequently, the burden of proof is by a preponderance of the evidence. Id.; see, also, R.C. 2933.43(C). R.C. 2933.42(A) provides "[n]o person shall posses, conceal, transport, purchase, sell, lease, rent, or otherwise transfer contraband." Contraband includes, among other things: (2) Property that is not in and of itself unlawful for a person to acquire or possess, - 8 - but that has been determined by a court of this state, in accordance with law, to be contraband because of its use in an unlawful activity or manner, of its nature, or of the circumstances of the person who acquires or possesses it; * * * (5) *** [M]oney as defined in section 1301.01 of the Revised Code, or other means of exchange that has been, is being, or is intended to be used in an attempt or conspiracy to violate, or in a violation of, Chapter 2925. *** of the Revised Code; *** R.C. 2901.01(M)(2) and (5). Reviewing the record, we find that the trial court properly found that the state proved by a preponderance of the evidence that the pager and money were contraband. Accordingly, Marshall's second assignment of error is not well taken. V. In his third assignment of error, Marshall contends his convictions are against the manifest weight of the evidence. "On the trial of a case, either civil or criminal, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. When determining whether a verdict is against the manifest weight of the evidence, the reviewing court reviews: *** the entire record, weighs the evidence and all reasonable inferences, considers the credi- bility of witnesses and determines whether in - 9 - resolving conflicts in the evidence, the jury clearly lost its way and created such a mani- fest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172, 175. A reviewing court's "discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Id. Marshall argues the jury lost its way and created a manifest miscarriage of justice because it chose to believe Bryant and Roebuck. We disagree. Reviewing the record, we find the jury could properly find Marshall guilty of drug trafficking, in violation of R.C. 2925.03(A)(6), and drug trafficking, in violation of R.C. 2925.03(A)(2). Accordingly, Marshall's third assignment of error is not well taken. VI. In his fourth assignment of error, Marshall contends the drug trafficking offenses are allied offenses of similar import. This court has consistently held that trafficking in drugs by preparing for shipment, shipping, etc., and by possession are not allied offenses of similar import. Powell, 87 Ohio St.3d at 169- 170; State v. Jordan (1992), 73 Ohio App.3d 524, 541-542; State v. Gilbert (Sept. 22, 1994), Cuyahoga App. No. 66269, unreported, pages 10-11; State v. Jackson (Aug. 4, 1994), Cuyahoga App. No. 65957, unreported, pages 5-7. - 10 - Accordingly, Marshall's fourth assignment of error in not well taken. VII. In his fifth assignment of error, Marshall contends the trial court erred when it denied his motion for acquittal under Crim.R. 29(A). "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." State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. In State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, the court held that: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence 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 inquiry 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. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L. Ed.2d 560, followed.) We find that a rational trier of fact could find the essential elements of drug trafficking, in violation of R.C. 2925.03(A)(6), - 11 - and drug trafficking, in violation of R.C. 2925.03(A)(2), proven beyond a reasonable doubt. Accordingly, Marshall's fifth assignment of error is not well taken. Judgment affirmed. - 12 - 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 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. JAMES D. SWEENEY, J. CONCURS DAVID T. MATIA, J. CONCURS LEO M. SPELLACY PRESIDING 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 .