COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67389 : : STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JOURNAL ENTRY : AND JORY WEAVER : OPINION : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 10, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Cuyahoga County Common Pleas Court Case No. CR-304553 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, Cuyahoga JAMES A. DRAPER, Cuyahoga County Prosecuting Attorney County Public Defender BLAISE D. THOMAS, Assistant PATRICIA J. SMITH, Assistant Prosecuting Attorney Public Defender Justice Center, Courts Tower 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 JORY WEAVER, #291-393, PRO SE Marion Correctional Institution P O. Box 57 Marion, Ohio 43301-0057 -2- SPELLACY, P.J.: Defendant-appellant Jory Weaver appeals convictions for drug trafficking, in violation of R.C. 2925.03(A)(9); drug trafficking, in violation of R.C. 2925.03(A)(2), with a furthermore clause indicating a previous conviction in Rhode Island for possession of a controlled substance; and possession of criminal tools (pager, organizer, and 1986 Mazda), in violation of R.C. 2923.24. Weaver raises six assignments of error through counsel: I. PROSECUTORIAL MISCONDUCT THROUGHOUT THE TRIAL AND THE CLOSING ARGUMENT TO THE JURY DENIED THE APPELLANT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR AND IMPARTIAL TRIAL. II. THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING THE DEFENSE MOTION FOR A MISTRIAL PROVOKED BY THE STATE'S USE OF PREJUDICIAL COMMENTS. III. THE TRIAL COURT ABUSED ITS DISCRETION BY ITS FAILURE TO GRANT THE DEFENSE MOTION FOR SEVER- ANCE OF HIS COUNTS. IV. THE VERDICT FINDING JORY WEAVER GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. V. THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED THE APPELLANT DUE PROCESS AND EQUAL PROTECTION AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN IT IMPOSED A MANDATARY FINE OF TEN THOUSAND DOLLARS [$10,000] WITHOUT REGARD TO APPELLANT'S INDIGENT STATUS. VI. THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED HIM BY BOTH THE OHIO STATE CONSTITUTION AND THE UNITED STATES CONSTITUTION, WHEN DEFENSE COUNSEL FAILED TO FILE A MOTION TO SUSPEND PAYMENT OF A MANDATARY FINE. -3- Weaver raises one assignment of error pro se: APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSIS- TANCE OF COUNSEL WHEN TRIAL COUNSEL ARBITRARILY WITHDREW, BY MOTION, DEFENDANT'S STIPULATION OF SPECIFIC EVIDENCE, PREJUDICING THE DEFENSE EXCLUDING DEFENDANT'S CONSTITUTIONAL RIGHT TO EQUAL PROTECTION AND DUE PROCESS OF THE LAW AND THE EXPECTATION OF A FAIR AND IMPARTIAL TRIAL. I. Evidence adduced at Weaver's jury trial reveals the following: In the early-morning hours of November 3, 1993, Linda Archibald agreed to travel by car with Weaver, whom she knew as James Deandrea, from New York, New York, to Cleveland, Ohio. Weaver and Archibald arrived in the Cleveland area in late morning and checked into a Howard Johnson in North Randall, Ohio. Between 11:45 a.m. and 4:08 p.m., sixteen local telephone calls were made from their motel room. Shortly after Weaver and Archibald arrived, a confidential informant notified Larry Brock, an agent with the Bureau of Alcohol, Tobacco & Firearms, that Weaver had checked into the Howard Johnson and was involved with illicit drug activity. Agent Brock subsequently discovered that Weaver was a Rhode Island parole violator with an outstanding arrest warrant. At approximately 4:10 p.m., Weaver and Archibald left their motel room and drove off. Moments later, Agent Brock and North Randall police officers stopped Weaver and Archibald. They found two pagers and an electronic organizer on Weaver. At the police -4- station, Archibald, faced with a search of her clothing, removed three bags containing 634.28 grams of cocaine from her trousers. A straight shooter was also found in her jacket. Archibald made a written statement and consented to a search of the motel room. A search revealed two bags containing 499.71 grams of cocaine between the mattress and box springs. Archibald testified that she had not known about the cocaine until Weaver instructed her to put the three bags of cocaine in her trousers shortly before they left the motel room. Archibald further testified that the charges against her were reduced in exchange for her agreement to testify and that she had pleaded guilty to drug offenses and been sentenced to five to fifteen years. She also testified that Detective Rose visited her in jail and placed money on her jail account. Detective Rose acknowledged checking on Archibald in jail and placing fifteen dollars on her account twice. Archibald also stated that she had written Detective Rose several letters. II. In his first assignment of error, Weaver contends prosecutorial misconduct prevented him from having a fair trial. Weaver argues the prosecutor improperly referred to him as a parole violator and fugitive from justice. During direct examination, Agent Brock testified that after receiving the tip from the confidential informant he discovered through a computer search that Rogers was a parole violator from Rhode Island. The -5- following exchange then took place: Q. Does that status in essence make that person a fugitive from justice? MR. REED: Objection. THE COURT: Sustained. Q. Is a parole violator a fugitive? MR. REED: Objection. THE COURT: He can answer that. A. Yes. MR. REED: Objection. THE COURT: Overruled. A. Yes, in my opinion. Q. Now, in your experience and training, when you then reach this point in an investigation where you believe possibly you may have a (sic) interstate fugitive -- MR. REED: Objection. THE COURT: Approach the Bench, counsel. * * * Q. You told us that you are investigating the name in connection with a confidential source of information and that that name came up in connection with a drug conviction from another state, and in view of the nature of the activities which you are aware of at North Randall and its hotel, what are your concerns at that point when you are conducting this background investigation? A. Well, obviously it was fairly apparent to me that the person was wanted from Rhode Island. MR. REED: Objection. THE COURT: Overruled. -6- *** Q. Did the male match the physical information that you had received regarding the fugitive known as Jory Weaver? MR. REED: Objection, Judge. THE COURT: Overruled. (Tr. 124-132) The prosecutor ended his closing argument with the following; It is time to tell this man who is a fugitive from Rhode Island, a parole violator, that he can't run from justice and it is time to tell him he can't run anymore drugs. It is time. (Tr. 264) Weaver also argues that the prosecutor improperly elicited testimony concerning his status as a Georgia escapee during direct examination of Detective Hrouda: Q. And upon receiving the call that he had witnessed people leaving Room Number 211, what did you do? A. As soon as he said they were leaving, I grabbed ahold (sic) of Detective Rose and got the detective car and proceeded directly behind Howard Johnson's where they were staying. Q. All right. A. As we were approaching the front, I received other information from the ATF that Mr. Jory Rogers was allegedly an escapee out of Georgia. MR. REED: Judge, may we approach the Bench? THE COURT: Come on up here. * * * -7- Q. What happened when you arrived in the vicinity of the hotel? A. In the vicinity of the hotel, that's when we received the other transmission from Agent Brock. Q. All right. A. He stopped us and informed us that Mr. Jory Rogers was also suspected to be an escapee out of Georgia. (Tr. 219-221) "The conduct of a prosecuting attorney during trial cannot be a ground of error unless the conduct deprives defendant of a fair trial." State v. Keenan (1993), 66 Ohio St.3d 402, 403, citing State v. Apanovitch (1987), 33 Ohio St.3d 19, 24. Miscon- duct, if it exists, is evaluated within the context of the entire trial. Keenan, 66 Ohio St.3d at 410. We find no prosecutorial misconduct. The trial court properly admitted evidence of Weaver's parole-violator status as being inseparable from the facts of the arrest. The prosecutor's reference to this status was not improper. Further, the prosecu- tor's calling Weaver a fugitive, while unnecessary, does not rise to the level of misconduct. In addition, the record does not show that the prosecutor elicited the references to Weaver's status as a Georgia escapee. Even if misconduct occurred, we would, in the face of the overwhelming evidence of guilt, find it harmless. Accordingly, Weaver's first assignment of error is not well taken. -8- III. In his second assignment of error, Weaver contends the trial court erred when it denied his motion for mistrial. We review a ruling on a motion for mistrial for abuse of discretion. State v. Sage (1987), 31 Ohio St.3d 173, 182. "Mistrials need be declared only when the ends of justice so require and a fair trial is no longer possible." State v. Franklin (1991), 62 Ohio St.3d 118, 127. Weaver moved for mistrial after Detective Hrouda testified that he was a Georgia escapee. Reviewing the record, we find the trial court did not abuse its discretion when it denied the motion for mistrial. Accordingly, Weaver's second assignment of error is not well taken. IV. In his third assignment of error, Weaver contends the trial court erred when it denied his motion to sever the offenses. Weaver, however, moved for bifurcation of the furthermore clause containing the prior drug conviction, not for severance of the offenses. Weaver, therefore, waived his right to raise this issue on appeal. Shover v. Cordis Corp. (1991), 61 Ohio St.3d 213, 220; State v. Williams (1977), 51 Ohio St.2d 112, paragraph one of the syllabus. The trial court properly denied Weaver's motion to -9- bifurcate. Where, as here, a prior conviction elevates the degree of an offense, it may not be bifurcated from the remainder of the elements of the offense. State v. Ireson (1991), 72 Ohio App.3d 235, 239. Accordingly, Weaver's third assignment of error is not well taken. V. In his fourth assignment of error, Weaver contends that 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 credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest 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. Weaver argues that the jury lost its way and created a mani- fest miscarriage of justice when it chose to believe Archibald. -10- Reviewing the record we find no manifest miscarriage of justice. Accordingly, Weaver's fourth assignment of error is not well taken. VI. In his fifth assignment of error, Weaver contends the trial court erred when it failed to suspend his mandatory fine after finding him indigent. A trial court may refuse to suspend a fine when the defendant fails to file an affidavit averring that he is indigent and unable to pay a mandatory fine. State v. Reitz (1991), 74 Ohio App.3d 33, 35. No affidavit of indigency for the nonpayment of mandatory fines has been filed. In addition, the trial court only found Weaver indigent for the purpose of retaining counsel. Determination of indigency for purposes of retaining counsel and payment of fines are distinct. State v. Lefever (1993), 91 Ohio App.3d 301, 308. Accordingly, Weaver's fifth assignment of error is not well taken. VII. In his sixth assignment of error, Weaver contends he received ineffective assistance of counsel because his trial counsel failed to file an affidavit of indigency for nonpayment of mandatory fines. The failure to file an affidavit alleging that a defendant -11- is indigent and unable to pay a mandatory fine only constitutes ineffective assistance of counsel when the record shows a reason- able probability that the trial court would have found the defen- dant 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. No. 9-93-12, unreported; see, also, State v. Powell (1992), 78 Ohio App.3d 784. The trial court appointed appellate counsel after Weaver's trial counsel stated that Weaver was indigent and lacked funds to hire an attorney. Indigency for retaining counsel, however, is distinct from indigency for payment of fines. Lefever, 91 Ohio App.3d at 308; Reitz, 74 Ohio App.3d at 35. We find the record fails to show a reasonable probability that Weaver would have been found indigent for purposes of the payment of mandatory fines if the affidavit of indigency had been filed. Accordingly, Weaver's sixth assignment of error is not well taken. VIII. In his pro se assignment of error, Weaver contends he received ineffective assistance of counsel because his trial counsel withdrew a stipulation concerning the Rhode Island conviction and then attempted to re-stipulate to the conviction. An ineffective assistance of counsel claim requires a -12- showing that counsel's performance was deficient and that the deficient performance was prejudicial. Strickland v. Washington (1984), 466 U.S. 668, 687. Deficient performance requires a "showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment." Id. Prejudice requires a "showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. When determining whether counsel's performance was deficient, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689. After initially stipulating to Weaver's previous conviction, trial counsel withdrew the stipulation. When the state acquired documentation of the Rhode Island conviction, Weaver's trial counsel unsuccessfully attempted to re-stipulate to the conviction. We find these actions fall within the realm of acceptable trial strategy. Accordingly, Weaver's pro se assignment of error is not well taken. Judgment affirmed. -13- 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 Rule of Appellate Procedure. JAMES D. SWEENEY, J., and DAVID T. MATIA, 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 announce- ment of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, .