COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68452 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ANTHONY GLOVER : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 2, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-268129. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Norman Kotoch, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Kevin M. Spellacy, Esq. One Cleveland Center 1375 E. 9th Street Suite 1920 Cleveland, OH 44114 -2- DAVID T. MATIA, J.: Anthony Glover, defendant-appellant, appeals from his conviction of drug abuse in violation of R.C. 2925.11, with a furthermore clause and violence specification. Appellant raises three assignments of error. This court, finding no error, affirms appellant's conviction. I. STATEMENT OF FACTS On the evening of June 7, 1991, two cars from the Cleveland Police Department's Fourth District, Vice Unit, were engaged in surveillance in the area of East 139th Street, Cleveland, Ohio. Detective Kornatowski, a member of the Cleveland Police Department for twenty seven years, testified the area was known for high drug activity and that they had received several citizens' complaints for those reasons. The detective further testified that on the night in question, they observed four to five males standing in a group passing a small object around and exchanging money in a well lit area. When the officers approached the group, three individuals ran and were chased by the second vice car. The appellant turned around to face the officers and immediately placed his hands in his pockets. The detectives told appellant to remove his hands from his pockets. As appellant did this, the officers witnessed appellant drop an object which was immediately retrieved by Detective Stanek. The object was a glass straight shooter which subsequently tested positive for cocaine residue. -3- On August 13, 1991, Anthony Glover, defendant-appellant, was indicted on one count of drug abuse with a furthermore clause and violence specification. On February 26, 1992 appellant waived his right to a jury trial and a bench trial commenced. On March 6, 1992 appellant filed a motion for acquittal which was denied. On March 11, 1992 appellant was found guilty as indicted. After granting appellant's Notice of Delayed Appeal, we address appellant's assigned errors. II. FIRST ASSIGNMENT OF ERROR Anthony Glover, defendant-appellant, states as his first assignment of error: I. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTIONS FOR ACQUITTAL AS THERE IS INSUFFICIENT EVIDENCE TO CONVICT MR. GLOVER OF DRUG ABUSE WHEN THE STATE FAILED TO PROVE THAT MR. GLOVER HAD POSSESSION OF THE DRUGS. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR ACQUITTAL. Anthony Glover, defendant-appellant, argues the trial court erred in denying his motion for acquittal. Specifically, appellant argues the state failed to produce sufficient evidence establishing appellant has constructive possession of the glass straight shooter. Moreover, appellant argues the testimony of the officers and the state's failure to conduct a fingerprint analysis could lead only to one conclusion, that appellant was near a group of males passing around an unidentified object. -4- Since this is insufficient to sustain a conviction, the trial court erred in denying appellant's motion for acquittal. Appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW: MOTION FOR ACQUITTAL. Under Crim.R. 29, a trial court "shall not order an entry 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. "A motion for judgment of acquittal under Crim.R. 29(A) should be granted only where reasonable minds could not fail to find reasonable doubt." State v. Apanovitch (1987), 33 Ohio St.3d 18, 23. Thus, the test an appellate court must apply in reviewing a challenge based on a denial of a motion for acquittal is the same as a challenge based on the sufficiency of the evidence to support a conviction. See State v. Bell (May 26, 1994), Cuyahoga App. No. 65356, unreported. In State v. Jenks (1991), 61 Ohio St.3d 259, 273, the Ohio Supreme Court set forth the test an appellate court should apply when reviewing the sufficiency of the evidence to support a conviction: [T]he relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In other words, an appellate court's function when reviewing the sufficiency of the evidence 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. State v. Eley [(1978), 56 Ohio St.2d 169]. -5- See also, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. C. THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT'S MOTION FOR ACQUITTAL. After a review of the evidence submitted, we find reasonable minds could come to the conclusion that appellant knowingly possessed a controlled substance in violation of R.C. 2925.11. "Possess" or "possession" is defined by R.C. 2925.01(L) as "*** having control over a thing or substance but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found." At trial, Detective Kornatowski testified in part: Q. Can you tell Judge Villanueva what led you to your encounter with Mr. Glover? A. We were doing surveillance of the area, going up and down a couple of streets trying to spot activities that were consistent with drug activity. We would stop and watch and try to observe who was doing what, who was carrying the money, who was selling the drugs. At this time we observed approximately four to five males standing in front of this location. We parked up the street. We had binoculars, Detective Stanek, and he observed these males engaging in what appeared to be drug activities. One of the males was passing an object around to the other males. They were looking at it. We saw another male remove from his pocket what we believe to have been money, and an exchange had taken place at this time. There were two cars. We were the lead car. Detective Stanek, -6- Detective Machesky and myself. And Detectives Long, Ansari and Sergeant Armstrong were in the follow-up car. Both were plainclothes cars. After we saw this, what appeared to be a drug transaction, we pulled up and identified ourselves as vice officers, at which time three of the males ran from the location into the backyards, being chased by the other officers in the second car. Q. Were you able to apprehend anyone at that location? A. Yes. One of the males, Mr. Glover, had his back to us as we pulled up. We got out of the car and he turned around. He had his hands at his sides at this time. Q. When he was facing you? A. He had his back toward us. He turned. His hands were still free and at his side. When he turned and saw us, he immediately placed his hands in his pockets, at which time we again identified ourselves as vice detectives and ordered him to walk toward us and take his hands out of his pockets. Q. Why did you ask him to remove his hands from his pockets? A. For fear that he might have had a weapon in his pockets, to start with. * * * Q. What could you perceive from the process -- from the point where Mr. Glover turned around and saw you facing him, what did he do? A. He immediately placed both hands in his jacket pockets. We told him to remove his hands from his pockets and walk toward us, which he started to do. He got within about five feet of our car. He removed both hands, at which time he dropped an object to the ground, which was -7- immediately recovered by one of the detectives, Detective Stanek. Q. Did you see this object? A. Yes. We all saw it fall. Q. Did you see who discarded that object? A. Yes. Q. Who discarded that object? A. Mr. Glover. Q. Were any other individuals around Mr. Glover at this time when you saw him discard that object? A. No. The other males had ran. Q. Besides the detectives, were there any other pedestrians on the scene? A. No. Q. Approximately how far away from Mr. Glover were you when you saw him discard the object? A. We were probably about the distance from where I am to you, right now. Maybe about 10 feet. Q. When you were first observing what you mentioned as what appeared to be a drug transaction between males on the corner, about how far away from them were you? A. We were probably maybe about ten houses down the street. Q. About how long did you watch this activity? A. Maybe about a minute, two minutes. Q. Who retrieved the object discarded by Mr. Glover? A. I think it was Detective Stanek. -8- Q. Showing you what's been marked as State's Exhibit 1, do you recognize State's Exhibit 1? A. Yes. It's a glass straight shooter with the chore boy, which is used as a filter. It's a piece of, like, metal wool, and usually that's what they will put rock in and smoke it. Q. Do you recognize this object? A. Well, at this time it's in the evidence bag. After this property is recovered, we place it into an evidence bag which has a number. In this case it's 01906, and we place our names on it, the unit, the date, the suspect's name and a brief description of what was recovered and where it was recovered at. This is sent to our lab. Q. Was that done that evening? A. Yes, it was. * * * (Tr., pp. 15-19.) Moreover, Detective Stanek testified in part: Q. On that evening, did you have an opportunity to come in contact with Anthony Glover? A. Yes. Q. Could you please tell the Judge what led to your encounter with Mr. Glover on this evening? A. We were conducting an ongoing investigation for narcotic activity in that location, 139th and Kinsman. We saw several groups of males -- or six -- standing in front of 3339 East 139th. We were facing -- approaching southbound East 139th. We pulled to the curb. There was two cars; ours and another detective car behind us. I was the front passenger. I in turn had possession of a pair of -9- binoculars, which I always carry with me. * * * A. We parked 10, 11 houses down from the location where males were standing on the sidewalk. Through the binoculars I observed a group of males, including Mr. Glover, passing an object among themselves. I really didn't know what it was. From my expertise I believed it to be a narcotic related transaction. One of the other males was showing an object to another male, and it looked like an exchange of currency. I really couldn't tell from that point. We approached. As we approached the group of males, we had to go left wheels to the curb. Several of the males observed us coming and started to back away slowly. We stopped the car and started to get out of the vehicle. Several guys ran. Mr. Glover, whose back at the time was turned to us, turned to look while the other guys were running, at which time he put his hands in his pockets. For our safety we instructed him to remove his hands from his pockets so we can check for weapons, at which time as he approached the other vehicle from the sidewalk to the grass, his hands came out of his pants. From his right hand he dropped a glass tube containing suspected cocaine residue, which tested positive. Q. Who retrieved the glass tube? A. I did, sir. Q. When you first arrived on the scene, did you identify yourself as police officers? A. Yes, absolutely. Q. When Mr. Glover turned around, did you have your weapons drawn? -10- A. Absolutely. It was a well lit area. We had our flashlights directed at Mr. Glover. We were more concerned with his hands rather than his overall physical appearance. Q. So at any point when he turned around, were his hands completely concealed? A. As he turned, he placed them in his pockets, yes. Q. They did become concealed? A. Yes, they did. (Tr., pp. 38-41.) We find the evidence presented at trial, if believed, was sufficient to support a finding that each element of the drug abuse offense was proven beyond a reasonable doubt. See State v. Boyd (1989), 63 Ohio App.3d 790; State v, Johnson (Nov. 21, 1985), Cuyahoga App. No. 49746, unreported. Appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Anthony Glover's, defendant-appellant's, second assignment of error states: I. THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE. A. ISSUE RAISED: WHETHER THE GUILTY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues the guilty verdict was against the manifest weight of the evidence. Specifically, appellant argues the police officers' testimony is inconsistent and unsubstantiated as neither officer initially testified that appellant was holding a bag of beer and pop. Yet when Officer Kornatowski finally -11- acknowledged a bag was found, there was explanation of why neither officer mentioned it earlier or what actually happened to that bag. Furthermore, appellant argues both officers testified appellant's back was to them as they approached while appellant claims he was facing the police and saw them approaching. Appellant claims since he wasn't doing anything illegal, there was no need for appellant to run away with the rest of the group. Finally, appellant argues no fingerprint tests were requested by the officers. For these reasons, appellant argues testimony of the officers and the lack of physical evidence demonstrates the verdict is against the manifest weight of the evidence. Appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW: MANIFEST WEIGHT. In Tibbs v. Florida (1982), 457 U.S. 31, the United States Supreme Court recognized the distinction in standards between claims of "insufficiency of evidence" and "manifest weight of the evidence". Unlike a reversal based upon the insufficiency of the evidence, an appellate court's disagreement with the jurors' weighing of the evidence does not require the special deference accorded verdicts of acquittal, i.e., invocation of the double jeopardy clause as a bar to relitigation. Id. at 43. Upon application of the standards established in Tibbs, the court in State v. Martin (1983), 20 Ohio App.3d 172, has set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: -12- There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here, the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the 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. Moreover, it is important to note the weight of the evidence and the credibility of the witnesses are issues primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. Hence, we must accord due deference to those determinations made by the trier of fact. C. THE TRIAL COURT'S DETERMINATION THAT APPELLANT WAS GUILTY OF DRUG ABUSE WAS NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Upon review of the record, we find substantial credible evidence was presented supporting appellant's conviction. At no time did the officers testify they did not see appellant carrying a bag of beer and pop. After being questioned about the bag, Officer Karnatowski testified that while he did not see appellant holding the bag, a bag was found on the ground next to appellant. There is nothing in the record which is contradictory of the officers' account of the events or that would call into question the credibility of the officers' testimony. In fact, the testimony of appellant supports the officers' testimony that they did not see appellant holding a bag but did find one on the ground nearby: -13- Q. So between the time that you were told -- you were approached by the police, rather, and the time that you got back to the police car, you had the bag in you hand and the police didn't take it from you? A. From the time they approached me, I dropped it. Q. Oh, you dropped the bag, is that right? A. Yes. After a complete review of the testimony of the officers and appellant and keeping in mind the weight of the evidence and credibility of the witnesses is primarily a question for the trial court, we find hold appellant's guilty verdict does not constitute a manifest miscarriage of justice. As such, appellant's conviction was not against the manifest weight of the evidence. Appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR Anthony Glover, defendant-appellant, states as the third assignment of error: III. TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO CALL WITNESSES, THEREBY DENYING ANTHONY GLOVER HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. A. ISSUE RAISED: WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL. Appellant argues he was denied effective assistance of counsel. Specifically, appellant argues his trial attorney performed below an objective standard of reasonable representation by failing to call appellant's wife and the store -14- clerk who sold appellant the beer and pop. These witnesses, appellant argues, would corroborate appellant's version of the events and cast doubt upon the officers' version of the incident. Thus, since this testimony would have clearly assisted appellant, the failure to call the defense witnesses is paramount to ineffective assistance of counsel. Appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW: INEFFECTIVE ASSISTANCE OF COUNSEL. The Sixth Amendment to the United States Constitution provides that the accused shall enjoy the right to "have the Assistance of Counsel" in all criminal prosecutions. See, also, Section 10, Article I, Ohio Constitution. The Supreme Court of the United States has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial in that it assures the fairness, and thus, the legitimacy of our adversary process. Powell v. Alabama (1932), 287 U.S. 45; Gideon v. Wainwright (1963), 372 U.S. 335. This constitutional right to counsel is the right to effective assistance of counsel. McMann v. Richardson (1970), 397 U.S. 759. In State v. Bradley (1989), 42 Ohio St.3d 136, the Supreme Court extensively discussed the charge of ineffective assistance of counsel. At syllabus two and three, the court held: 2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard reasonable -15- representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668, followed.) 3. To show that defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. Finally, in reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98. C. APPELLANT WAS NOT DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. It is well established the failure to call witnesses at trial is not a substantial violation of defense counsel's essential duty to provide effective assistance absent a showing of prejudice. State v. Williams (1991), 74 Ohio App.3d 686; State v. Reese (1982), 8 Ohio App.3d 202. Moreover, the failure to call a witness is not prejudicial if the testimony of those witnesses simply would have been corroborative. State v. Warden (1986), 33 Ohio App.3d 87; Middletown v. Allen (1989), 63 Ohio App.3d 443. In such instances, the failure to call a corroborative witness is considered a tactical decision which does not amount to a breach of the attorney's duty. Warden, supra. -16- In the case sub judice, the witnesses whom appellant claims should have been called to the stand would have provided corroborative testimony to that of the appellant. Since the Sixth Amendment does not protect appellant from a decision concerning trial strategy, we cannot hold that appellant's counsel was ineffective. Appellant's third assignment of error is not well taken. Judgment affirmed. -17- 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. PATTON, C.J. and BLACKMON, J., CONCUR. DAVID T. MATIA 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 .