COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67159 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION SUSAN STEWART : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 16, 1995 CHARACTER OF PROCEEDING: CRIMINAL CASE FROM THE COMMON PLEAS COURT CASE NO. CR-237897-B JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BLAISE D. THOMAS (#0029520) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: STUART H. LIPPE (#0025257) 930 Leader Building 526 Superior Avenue Cleveland, Ohio 44114 - 2 - SPELLACY, P.J.: Defendant-appellant Susan Stewart appeals from her conviction for drug trafficking in violation of R.C. 2925.03(A)(4). Stewart raises three assignments of error: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN IT'S (SIC) FAILURE TO ASSERT (SIC) WHETHER WAIVER OF CONSTITUTIONAL RIGHT WAS MADE KNOW- INGLY, INTELLIGENTLY AND WITH AWARENESS OF LIKELY CONSEQUENCES OF WAIVER. II. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AS IT'S (SIC) VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. I. Stewart and her husband, Mack Marks, were convicted of drug trafficking after a bench trial where they were represented by the same counsel. The following evidence was adduced at trial: On March 22, 1989, a police officer and a confidential informant went to Stewart and Marks' home and purchased cocaine from Marks and Darius Pierce. Several minutes later police officers secured the home. The police officers testified that they waited to search for about an hour while they obtained a search warrant based on the cocaine purchase. Marks testified that the police officers began searching immediately. When the police officers searched the home they found cocaine in a frosted flakes cereal box on top of the refrigerator, a small - 3 - scale underneath the kitchen sink, two rocks of cocaine and $220 in Stewart's purse, and a handgun and $415 in the master bedroom. The defense stipulated that the cocaine was more than the bulk amount. Marks testified that he had only been holding the cocaine for Pierce. He further testified that Stewart was unaware of the cocaine. He stated that he put the two rocks of cocaine into Stewart's purse when the police officers approached the house and that he was the only one who ate frosted flakes. II. In her first assignment of error, Stewart contends the trial court erred by failing to determine whether her joint representa- tion with Marks created a conflict of interest. The right to effective assistance of counsel includes the right to representation by counsel without a conflict of interest. Glasser v. United States (1942), 315 U.S. 60, 70. A trial court, however, has no duty to inquire into the joint representation of defendants unless it knows or reasonably should know that the joint representation creates a possible conflict of interest. State v. Gillard (1992), 64 Ohio St.3d 304, syllabus; see, also, State v. Manross (1988), 40 Ohio St.3d 180, syllabus. A conflict of interest exists when the carrying out of one duty impinges on another duty, such as when counsel represents clients with incompatible interests. Manross, 40 Ohio St.3d at 182. - 4 - Here, nothing indicates the trial court knew or reasonably should have known that joint representation created a possible conflict of interest. Accordingly, Stewart's first assignment of error is not well taken. III. In her second assignment of error, Stewart contends she received ineffective assistance of counsel. A successful ineffective assistance of counsel claim must demonstrate the counsel's performance was deficient and prejudiced. Strickland v. Washington (1984), 466 U.S. 668, 686; State v. Cook (1992), 65 Ohio St.3d 516, 524. Deficient performance occurs when the counsel fails to function as the "counsel" guaranteed by the Sixth Amendment. Strickland; Cook. Prejudice results when the deficient performance deprives the defendant of a fair trial. Strickland; Cook. Stewart argues she received ineffective assistance of counsel because her trial counsel failed to file pretrial motions, especially a motion to suppress evidence. Stewart does not address how the failure to file pretrial motions constituted deficient performance or resulted in prejudice. Arguably, a motion to suppress evidence might have been appropriate based on Marks' statements that the police searched without a search warrant. Such a motion, however, had no likelihood for success. - 5 - Stewart also argues she received ineffective assistance of counsel because her joint representation with Marks created a conflict of interest. A conviction must be reversed where an actual conflict adversely affected the representation of the defendant. Manross, 40 Ohio St.3d 180, syllabus. Here, we find no conflict adversely affecting the representation of Stewart. The entire focus of the defense was to exonerate Stewart. Accordingly, Stewart's second assignment of error is not well taken. IV. In her third assignment of error, Stewart contends her conviction is 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 resolving conflicts in the evidence, the jury clearly lost its way and created such a mani- fest miscarriage of justice that the convic- tion 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 - 6 - exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Id. Reviewing the evidence, we conclude the trial court could properly find Stewart guilty of drug trafficking. Accordingly, Stewart's assignment of error is not well taken. Judgment affirmed. - 7 - 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. PATRICIA BLACKMON, J. and DONALD C. NUGENT, J., CONCUR. 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 it will become the judgment and order of the court and time period for review will begin to run. .