COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67497 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION CLARENCE A. PERRY : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 13, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-300443 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DANIEL SCHIAU, Assistant The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender VALERIE R. ARBIE, Assistant 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113 - 3 - O'DONNELL, J.: Appellant Clarence Perry appeals his convictions for drug trafficking in violation of R.C. 2925.03 and drug abuse in violation of R.C. 2925.11. We find the appeal not well taken and affirm. At trial, the evidence revealed that on August 11, 1993, just before midnight, Officers Norman Saborski and Guy Sako of the Cleveland Police Department conducted surveillance at 2782 East 75th Street in Cleveland, Ohio, in response to citizen complaints of drug activity. The officers, using binoculars from a wooded area, observed three adults and a child standing in front of a vacant building, witnessed a car drive up and park, and saw the driver get out and talk with appellant. (Tr. 151.) Appellant then walked to the side of the building, reached on top of the electric meter box, opened a container and took something out, replaced the container, then exchanged something with the driver of the car for paper currency. The driver then got in his car and drove away. Within the next fifteen minutes, the officers observed two similar transactions. The officers, believing appellant had sold drugs, arrested him and ordered the woman and child to leave the area. Pursuant to arrest, the officers then retrieved, from the top of the meter box, a black Hide-a-Key case which contained nine rocks of crack cocaine and confiscated $365.00 in cash from appellant's person. - 4 - At trial, Macio Craft, a defense witness, testified that on the evening of August 11, 1993, he and appellant worked on a car approximately half a block from 75th and Rawlings, that appellant took some tools over to a friend's house on Rawlings, and as he returned, ran into his girlfriend Vicki Palmer and their child. Craft last saw appellant talking to Palmer and the child and did not see the police approach appellant or arrest him. Craft testified he never saw appellant sell drugs in that area. Lincoln Darrell Hare also testified for the defense that on August 11, 1993, he lived and worked in a storefront located at 2785 East 75th. He testified that he saw Vicki Palmer and a child walk by, then stop and talk to appellant on the street. At that point, he saw a police car pull up, but did not see police arrest appellant because he went inside. Hare further testified he did not see appellant do anything that would indicate a drug deal. Vicky Palmer, appellant's girlfriend and the mother of his two children, testified that she met appellant on the corner of 75th and Wagner and talked with him, and that police pulled up and ordered her to leave. She testified that she did not see appellant sell drugs during that time. Lastly, appellant testified that after helping Macio Craft repair a car, he loaned a friend some tools and as he returned around eleven o'clock, he met Vicky Palmer and their son on the street at 2782 East 75th Street. He testified that police - 5 - arrived about fifteen or twenty minutes later. He said the officers ordered Vicky to leave the area and then arrested him for drug trafficking. Appellant denied selling drugs that night or using the key case to facilitate any drug transactions. The jury in this case returned verdicts finding appellant guilty of drug trafficking and drug abuse, but not guilty of possessing criminal tools. Appellant timely filed his notice of appeal and has raised the following three errors for our review. I. CLARENCE PERRY 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 OFFERED TESTIMONY REGARDING MR. PERRY'S PRIOR CONVICTIONS THAT WERE NOT SUBJECT TO BE ADMITTED FOR IMPEACHMENT PURPOSES PURSUANT TO EVIDENCE RULE 609(B). Appellant argues his trial counsel denied him effective assistance of counsel because his counsel elicited testimony regarding inadmissable prior convictions pursuant to Evid.R. 609(B). The State claims the actions of defense counsel did not deny appellant effective assistance of counsel because two of the prior convictions were admissible and counsel tried to demonstrate appellant's candor in admitting to past mistakes. The issue for this court, then, is whether the actions of defense counsel denied appellant effective assistance of counsel. - 6 - We begin our analysis with State v. Post (1987), 32 Ohio St.3d 380, which set forth the test to demonstrate a claim of ineffective assistance of counsel at page 388: "In Strickland v. Washington (1984), 466 U.S. 668, the United States Supreme Court enunciated the following two-pronged standard for determining whether counsel's assistance was ineffective: 'First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial ***." In evaluating defense counsel's performance, a reviewing court initially presumes that duly licensed counsel performed competently. See State v. Lytle (1976), 48 Ohio St.2d 391, 397. Further, a reviewing court must accord deference to counsel's strategic choices from counsel's perspective at time of trial without the benefit of hindsight. See Strickland, supra. In order to show prejudice, the defendant must prove that a reasonable probability exists that, absent counsel's error, the result of the trial would have been different. See State v. Bradley (1989), 42 Ohio St.3d 136, paragraph three of the syllabus. In this case, the record reveals that in response to defense counsel's questions, appellant responded he had been convicted of auto theft at age seventeen; of aggravated robbery, but that conviction has been reversed on appeal; of breaking and entering; - 7 - and of a federal weapons charge. (Tr. 368.) Appellant claims that testimony concerning the auto theft and the aggravated robbery charges should not have been admitted pursuant to Evid.R. 609, which states that evidence of a conviction is not admissible if a period of more than ten years has elapsed since the date of the conviction, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. Witness credibility became a central issue for jury determination in this case because the officers testified to what they observed and four defense witnesses testified that they did not see appellant sell drugs. Defense counsel elicited testimony from appellant regarding his prior convictions which fell outside the scope of Evid.R. 609 presumably in an effort to demonstrate candor and bolster appellant's credibility in the eyes of the jury and to show the appellant had no criminal drug-related history. Further, in final argument, defense counsel stated: "Now, sure, he's been convicted. Did you hear anywhere about a drug conviction? It's everything but a drug conviction. This man isn't a drug dealer." We, upon review, are obligated to defer to the trial tactics and strategic choices made by defense counsel prospectively, not retrospectively. During voir dire, defense counsel discussed the appellant's record with prospective juror No. 3 which further corroborates - 8 - the strategy employed by experienced trial counsel in an effort to persuade the fact finders to favorably consider the defense side of the case. Under these circumstances, we conclude that appellant has failed to show, as Post requires, that counsel made errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment, or that deficient performance prejudiced the defense. As such, this assignment of error is not well taken and is overruled. II. MR. PERRY'S RIGHT TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE MISCONDUCT OF THE PROSECUTOR WHEN THE PROSECUTING ATTORNEY FORCED CLARENCE PERRY TO EXPRESS HIS OPINION AS TO THE TRUTHFULNESS OF THE STATE'S WITNESSES. Appellant claims the prosecutor asked him to express his opinion as to the truthfulness of the State's witnesses, and thereby denied him a fair trial. The State believes prosecutorial misconduct did not deny appellant a fair trial because error, if any, was invited by appellant and defense counsel did not object to the State's questioning. The issue then, for this court, is whether appellant received a fair trial. - 9 - In this case, the appellant volunteered during cross- examination that the policemen were lying about him, which prompted the prosecutor to ask if other witnesses were also lying. Appellant himself raised the issue, and defense counsel did not object, or move to strike or limit the statements. Failure to object to this testimony waived any claim of error concerning the admission of this evidence. See State v. Nicholas (1993), 66 Ohio St.3d 431, at 435-436. We conclude appellant received a fair trial and this assignment is without merit. III. THE VERDICTS FINDING CLARENCE PERRY GUILTY OF DRUG ABUSE AND DRUG TRAFFICKING WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THERE WAS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSES HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. Appellant argues his convictions are against the manifest weight of the evidence because the cumulative result of errors at trial lead to the jury's acceptance of the State's case. The State believes the convictions are not against the manifest weight of the evidence because abundant evidence exists to support the convictions. The issue, then, for this court is whether the convictions are against the manifest weight of the evidence. - 10 - We begin our analysis with State v. Martin (1983), 20 Ohio App.3d 172, which set forth the test to be used when addressing this issue: "*** The court, reviewing 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. ***" In this case, appellant is charged with the crime of drug trafficking, which R.C. 2925.03 defines, in relevant part, as follows: "(A) No person shall knowingly ***: "*** "(2) *** deliver *** or distribute a controlled substance, when the offender knows *** the controlled substance is intended for sale *** by the offender ***; "*** In the case the testimony of the officers corroborated by the cocaine and the key box demonstrates that appellant knew he intended to sell cocaine because the officers saw him sell it on three separate occasions and they recovered more than $300 in cash from his person at the time of his arrest. This conviction is, therefore, not against the manifest weight of the evidence. Appellant is also charged with drug abuse, which R.C. 2925.11 defines, in relevant part, as follows: "(A) No person shall knowingly *** possess *** a controlled substance. - 11 - "*** The evidence presented at trial revealed that appellant had nine rocks of crack cocaine under his control inside the black Hide-a-Key case on top of the gas meter. The law permits the fact finder to draw permissible inferences from this evidence. Here, the jury could infer, based on the testimony of the police officers and other evidence in the case that the appellant was aware the black key box contained cocaine and that he was exerting control over it. Thus, we conclude that this conviction is not against the manifest weight of the evidence. Based on our review of the entire record and weighing the evidence and all reasonable inferences and considering the credibility of the witnesses, we cannot say that the jury clearly lost its way and created such a manifest miscarriage of justice that appellant's convictions must be reversed and a new trial ordered. We conclude the convictions are not against the manifest weight of the evidence and this assignment of error is without merit. 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 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. DYKE, P.J., and NAHRA, J., CONCUR JUDGE TERRENCE O'DONNELL 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, .