COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68665 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION TOMMY L. COLE : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 15, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-308971 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: GEORGE M. GEORGE (#0038946) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JOHN P. PARKER (#0041243) 4403 St. Clair Ave. Cleveland, Ohio 44113 - 2 - 2 SPELLACY, C.J.: Defendant-appellant Tommy L. Cole ("appellant") appeals his conviction for one count of drug trafficking, two counts of drug abuse, and one count of possessing criminal tools. Appellant assigns the following error upon appeal: THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS WHEN COUNSEL ELICITED PRIOR CONVICTIONS FROM THE APPELLANT AND FAILED TO OBJECT ON CROSS-EXAMINATION TO THE APPELLANT'S PRIOR CONVICTIONS THAT WERE INADMISSIBLE PURSUANT TO EVIDENCE RULE 609. Finding the assignment of error to lack merit, the judgment of the trial court is affirmed. I. Cleveland police received complaints pertaining to drug activity at 8721 Nevada in Cleveland. Detectives conducted surveillance on that address. An unusual amount of pedestrian activity was observed at the residence. Vehicles were seen driving up with the occupants then entering the house for a short period of time. The detectives, using binoculars, observed what they believed to be drug transactions taking place on the front porch of the residence. An informant purchased crack cocaine from a female on the front porch of 8721 Nevada. A search warrant then was obtained. Additional surveillance was conducted. On March 22, 1994, the informant called the address and spoke to a male who identified himself as Tommy Lee. The informant and the male agreed to meet at East 86th Street and Quincy. The detectives observed a male exit - 3 - 3 the house and enter an automobile. The detectives followed the male in their vehicle to the area of East 86th Street and Quincy. The male exited his car and spoke to the informant. A hand-to- hand transaction took place and the male left. The detectives followed the male to a corner store and then back to 8721 Nevada. The search warrant was executed. The male, identified as appellant, was found in the kitchen of 8721 Nevada. Four other people also were there at the time. Four rocks of crack cocaine, a packet of heroin, and a $20 bill were found in appellant's possession. The $20 bill was identified as part of the buy money provided to the informant by the police. It had been marked and photo copied earlier. Personal papers belonging to appellant were found in the residence. Five rocks of crack cocaine and some marijuana were found in the bedroom. Appellant denied selling crack cocaine to the informant or to anyone that day. Appellant testified the informant and he had a fight right before this incident took place and the informant called police on him because of the fight. Appellant denied the buy money was in his pocket and claimed to be wearing someone else's coat at the time of his arrest. Appellant was convicted by a jury on four counts in the indictment. Another count of drug trafficking was nolled prior to the commencement of trial. Appellant appeals from this conviction. - 4 - 4 II. In his assignment of error, appellant contends he was denied effective assistance of counsel. Appellant bases his argument on testimony elicited while he was on the stand during direct and cross-examination concerning prior convictions. Appellant argues the evidence of his prior convictions was inadmissible under Evid.R. 609(B) because the convictions occurred more than ten years before trial. To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 687. Deficient performance means that claimed errors were so serious that the defense attorney was not functioning as the "counsel" that the Sixth Amendment guarantees. Prejudice means that counsel's errors compromised the reliability of the trial. Trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel's perspective at the time. State v. Cook (1992), 65 Ohio St.3d 516, 524-525. A properly licensed attorney is presumed to execute his or her duties in an ethical and competent manner. State v. Smith (1987), 36 Ohio App.3d 162. Assistance of counsel will not be deemed effective upon acquittal and ineffective upon conviction. State v. Hunt (1984), 20 Ohio App.3d 310. A defendant must show there is a reasonable possibility that, but for counsel's errors, the result - 5 - 5 of the proceeding would have been different. Strickland, supra, at 694. Evid.R. 609 governs impeachment by evidence of conviction of a crime. Evidence that the accused has been convicted of a crime is admissible if the crime was punishable by death or imprisonment in excess of one year and if the court determines that the probative value of the evidence outweighs the danger of unfair prejudice or confusion of the issues or of misleading the jury. Evid.R. 609(A)(2). Evidence of the conviction is not admissible if a period of more than ten years has elapsed unless the court determines, in the interests of justice, that the probative value of the conviction outweighs its prejudicial effect. Evid.R. 609(B). At trial, the evidence regarding appellant's prior convictions was brought out during direct examination. On direct, appellant testified: Q. You ever sell cocaine? A. A long time ago I have. Q. How long ago? A. Been awhile. Q. What's "awhile"? A. Probably before I went to the penitentiary the last time, really. Q. You have been to the penitentiary before? A. Yes. Q. How many times? - 6 - 6 A. I have been -- I went to the penitentiary in 1975 for aggravated robbery, and I have been back a few times for parole violations for not reporting change of residence. Q. So you have been convicted of aggravated robbery? A. Right. Q. Anything else? A. I got convicted in '81 for GSI, and I had a theft in '86 that I got probation on. (Tr. 286-287). It was appellant's own response to the inquiry by his attorney regarding his past selling of cocaine that introduced appellant's prior convictions. Once appellant stated he had been in the penitentiary more than once, it was proper for his attorney to question appellant about why he was in the penitentiary and how many times instead of leaving the jury to speculate on the issue. Evid.R. 609 only applies when the prior convictions are used to impeach a witness or an accused. The testimony in the instant case was brought forth during direct examination and not introduced by the prosecution for impeachment purposes. It was appellant who opened the door for the introduction of the testimony about his prior convictions. Evid.R. 609 is not applicable in this instance. A review of the record does not reflect that appellant's coun- sel was deficient or that, without the testimony of appellant's prior convictions, the result of the trial would have been differ- - 7 - 7 ent. Appellant received effective assistance of counsel at his trial. Appellant's assignment of error lacks merit. Judgment affirmed. - 8 - 8 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. ANN DYKE, J. and DIANE KARPINSKI, J., CONCUR. LEO M. SPELLACY CHIEF JUSTICE 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 .