COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69386 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION TONY WRIGHT : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 27, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-321251 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PAUL MANCINO, JR., ESQ. CUYAHOGA COUNTY PROSECUTOR 75 Public Square, Suite 1016 BY: SHERRY F. McCREARY, ESQ. Cleveland, Ohio 44113-2098 ASSISTANT COUNTY PROSECUTOR The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Appellant appeals from his conviction for having a weapon while under disability, R.C. 2923.13, with one firearm specification and a violence specification. The conviction stems from events which took place on July 21, 1994. The evidence produced at trial is uncontroverted on the fact that appellant was situated on the front porch of a single family home in Cleveland when the police conducted a controlled delivery of a package at that address. The package had been identified as containing cocaine by a United States postal inspector. The package was addressed to Marco Parra at 9416 Holton Avenue. The return address was nonexistent, but the package had been mailed from Inglewood, California. The package was delivered by the postal inspector, while Cleveland police detectives conducted surveillance and a SWAT team waited on standby. To the postal inspector's inquiry as to whether appellant was Marco Parra, appellant responded that Parra was his son and was in school. Appellant signed for the package, using Marco's name. A child appeared from the side of the porch and was called upon to take the package to Marco's room. The child took the package around to the back of the house. Several minutes later, the police executed the search warrant, obtained in anticipation of the controlled delivery. The house was searched, as well as the vehicles parked in the back yard. A Nissan Pathfinder was one of the vehicles on the property. When - 3 - police found it to be locked, Detective Shoulders obtained the keys from appellant and Detective Sampson proceeded to search the vehicle's interior. Inside the locked glove compartment, the police found a 9 millimeter handgun and numerous personal papers, some pertaining to the Nissan, all in appellant's name. Appellant was arrested and then released until his indictment in November. On November 15, 1994, appellant was initially indicted on four counts; two counts consisting of drug trafficking offenses, one count of possession of criminal tools and one count of having a weapon while under disability. The first indictment included several convictions of a different Tony Wright, listed as specifications to the four offenses. The court allowed the deletion of the inapplicable convictions, but did not allow a substitution of the correct specifications. The State dismissed the indictment due to the trial court's refusal to allow the State to amend the indictment to include the proper prior convictions. The State refiled the indictment with the appropriate specifications on March 29, 1995. Appellant filed several motions which the trial court denied prior to trial, including a motion for a separate hearing on his prior convictions, a motion to suppress and two motions to dismiss. After a jury trial, appellant was acquitted of the second drug trafficking offense and the possession of criminal tools charge. A hung jury resulted on the first count of drug trafficking, which the court later dismissed. Appellant was convicted of having a weapon while under disability including - 4 - both the firearm and the violence specifications. He was sentenced to three to five years on the primary offense, to run consecutive to the three year sentence on the firearm specification. Appellant filed a timely notice of appeal and asserts eight assignments of error. I DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DID NOT GRANT HIS MOTION TO DISMISS BY REASON OF PROSECUTORIAL VINDICTIVENESS AND MISCONDUCT. Appellant argues that the prosecutor engaged in vindictive misconduct by dismissing the initial indictment without good cause, therefore the trial court should have granted appellant's motion to dismiss the second indictment prior to the commencement of the trial. Appellant's argument is not well taken. Prosecutorial vindictiveness will only be presumed in cases where "a reasonable likelihood of vindictiveness exists." United States v. Goodwin (1982), 457 U.S. 368, 373, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74, 81. Faced with similar facts, the Lake County Court of Appeals refused to apply a presumption of prosecutorial vindictiveness in State v. Johnson (1991), 77 Ohio App.3d 212. In Johnson, supra, the defendant was reindicted on the original two counts of robbery plus an additional specification of a prior robbery conviction. The prosecutor had encountered difficulty identifying the defendant as the one previously convicted until a matching fingerprint identification was made. In the case presently before us the prosecutor dismissed the - 5 - original indictment, which did not include the proper specifications, and reindicted on the same offenses, but included specifications based upon appellant's actual criminal record. On these facts, we can not presume prosecutorial vindictiveness. Nor do these facts in any way support actual vindictiveness by the prosecutor. The trial court properly denied appellant's motion to dismiss the indictment based upon prosecutorial vindictiveness. Appellant's first assignment of error is overruled. II DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION TO DISMISS BECAUSE HE WAS DENIED A SPEEDY TRIAL. Appellant argues that the trial court erred in failing to grant his motion to dismiss based upon the denial of a speedy trial. Appellant's argument is without merit. R.C. 2945.71(C)(2) sets forth a time limitation of 270 days after arrest, within which time a defendant facing a felony charge must be brought to trial. The relevant dates in the procedural history of this case are as follows: July 21, 1994 - appellant is arrested and released without being charged; November 15, 1994 - appellant is indicted; March 21, 1995 - State dismisses first indictment; March 29, 1995 - appellant is reindicted; June 9, 1995 - appellant files a motion to dismiss. The time began to run under the speedy trial statute on November 15, 1994 when appellant was indicted. The actual arrest - 6 - date of July 21st does not mark the commencement of the time period because no charges were filed at that time. The "speedy-trial statute shall run against the state only during the time in which an indictment or charge of a felony is pending." State v. Broughton (1991), 62 Ohio St.3d 253, 258. The date which marks the end of the relevant time period is not the date of trial in this case. The time was tolled with the filing of appellant's motion to dismiss, filed June 9, 1995. See R.C. 2945.72(E) and State v. Bickerstaff (1984), 10 Ohio St.3d 62. The number of elapsed days from November 15, 1994 until June 9, 1995 is 207. Also relevant to this determination is the time period from March 21, 1995 until March 29, 1995. During this brief interlude, no charges remained pending against appellant. The Ohio Supreme Court has held that the speedy trial statute is tolled during the period of time between the dismissal of one indictment and the refiling of a second indictment, based upon the same underlying facts, unless the defendant is in jail or released on bail. State v. Broughton (1991), 62 Ohio St.3d 253. Therefore, seven days should be removed from the 207 days calculated between appellant's original indictment and the filing of his motion to dismiss. The relevant time period during which the speedy trial statute was running was not over the 270 day limitation, but was well under with 200 days elapsing. The trial court properly denied appellant's motion to dismiss - 7 - his indictment based upon the running of the time for speedy trial. Appellant's second assignment of error is overruled. III DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION TO SUPPRESS. Appellant asserts that the search warrant and affidavit in support thereof did not authorize a search of his vehicle. Appellant's assertion is not well taken. The search warrant obtained prior to the controlled delivery contained the following language, in relevant part: [A]ffiant avers that he has reasonable cause to believe and does believe that in the premises located at: 9416 Holton Avenue, * * *; Said premises is on the south side of the street and there is a driveway along the west side of the house; And a detached, wood frame, garage, blue in color, and the curtilage thereof and any and all persons therein said premises, garage and curtilage thereof, there is now being unlawfully kept, concealed and possessed the following evidence of a criminal offense: * * * weapons, such as firearms, but not limited to said firearms; And any and all evidence of violations of the drug laws of the State of Ohio, to-wit: Ohio Revised Code Sections 2925.03 and 2925.11, et seq. The search warrant in this case is an anticipatory warrant. This has been defined as a warrant "based upon application showing probable cause that at some future time, but not presently, certain evidence of crime will be located at specific place to be searched." State v. Folk (1991), 74 Ohio App.3d 468, paragraph five of the syllabus. This type of warrant is valid upon a finding of probable cause. Probable cause to issue this warrant existed where the evidence in the affidavit created a substantial probability - 8 - that the contraband would be at the premises when searched. See State v. Folk, supra. Appellant argues that the Nissan Pathfinder was not specifically mentioned in the context of the warrant, therefore the search of the vehicle exceeded the scope of the warrant. This argument is without merit. The search warrant includes not only the house, but the garage and the curtilage thereof. The curtilage includes any vehicle parked in the driveway. A warrant to search a dwelling "and surrounding curtilage" includes the right to search an automobile parked on the driveway next to the residence. State v. Tewell (1983), 9 Ohio App.3d 330, paragraph one of the syllabus. This Court has followed the law as set forth by Tewell in State v. Hinson (Sept. 8, 1994), Cuyahoga App. No. 66259, unreported and State v. Mihalke (March 2, 1989), Cuyahoga App. No. 55047, unreported, and upheld the search of vehicles based upon the inclusion of the "curtilage" language in the search warrants. We find that the search of appellant's vehicle was within the contemplation of the search warrant under the meaning of the language "premises, garage and curtilage thereof." The trial court properly denied appellant's motion to suppress the evidence found in the Pathfinder. Appellant's third assignment of error is overruled. - 9 - IV DEFENDANT WAS SUBJECTED TO A FUNDAMENTALLY UNFAIR TRIAL WHEN PRIOR CONVICTIONS WERE USED WHICH COULD NOT BE USED TO IMPEACH DEFENDANT BECAUSE THEY OCCURRED OVER TEN YEARS OR WERE MISDEMEANOR OFFENSE. Appellant argues that the trial court erred in denying his motion for a separate hearing on the prior convictions used to support his conviction of having a weapon while under disability because those convictions were used improperly to his prejudice. Appellant's argument is without merit. Under count four of the indictment, appellant was charged with the offense of having a weapon while under disability, R.C. 2923.13: (A) Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply: * * * (2) Such person is under indictment for or has been convicted of any felony of violence, * * * (3) Such person is under indictment for or has been convicted of any offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse * * * This Court has held that the prior felony convictions of violence are an essential element of the offense and therefore must be proven by the State beyond a reasonable doubt. State v. Crim (June 4, 1987), Cuyahoga App. No. 51959, unreported. This Court held further in Crim that the legislature must have intended for the prior convictions to be proven to the jury or it would have written R.C. 2923.13 to include a bifurcated procedure as contained in R.C. 2929.022(A). - 10 - We are bound to follow law as set forth in this district unless directed to do otherwise by the Supreme Court. Therefore, the trial court properly denied appellant's motion for a bifurcated proceeding on the prior convictions included in the charge of having a weapon while under disability. Appellant's fourth assignment of error is overruled. V DEFENDANT WAS DENIED A FAIR TRIAL BY REASON OF IMPROPER ARGUMENT BY THE PROSECUTING ATTORNEY. Appellant argues under this assignment of error that the prosecutor improperly referred to stricken evidence and commented on the fact that appellant did not testify. Appellant further argues that the prosecutor commented on the credibility of appellant's evidence. Appellant's arguments are not well taken. The test as articulated by the Ohio Supreme Court to determine whether prosecutorial misconduct took place during closing arguments "is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant." State v. Smith (1984), 14 Ohio St.3d 13, 14, quoting United States v. Dorr (C.A. 5, 1981), 636 F.2d 117. The stricken testimony was a reference to a statement made by appellant to Sergeant Gercar when Gercar approached the porch to execute the search warrant. According to Gercar's testimony appellant said, "Sergeant Ray, what are you doing here?" (TR 338) Appellant then denied knowing anything about the package, according to Gercar's testimony. This portion was not stricken, only the - 11 - statement that implied familiarity between appellant and the police officer. The prosecutor stated in closing argument that appellant said, "Sergeant Ray, I don't know anything about that package." (TR 552) Appellant's argument that this statement is improper is moot in light of the fact that appellant was not convicted of either of the charges stemming from his signing for and receiving the package. As to appellant's argument that the prosecutor referred to his failure to testify, we are not convinced that any of the prosecutor's remarks could have been understood to be a comment on the appellant's decision not to testify. At one point the prosecutor refers to appellant's "testimony" but it is clear that the prosecutor meant to say "evidence" from the context of the statement. (TR 565) A prosecutor is allowed to remark upon the fact that a defendant did not present evidence in support of his case. State v. Watson (1991), 61 Ohio St.3d 1. Appellant correctly asserts that the prosecutor's reference to defense testimony as "a bunch of garbage" was improper. (TR 559) The prosecutor was commenting upon what the defense witness claims to have overheard from an unusually large distance. However, we do not find that this remark prejudicially affected appellant's substantive right to a fair trial. The jury was capable of making its own decision regarding the credibility of the witness, in spite of the prosecutor's remark. We do not find that appellant was denied a fair trial due to - 12 - the prosecutor's comments. Appellant's fifth assignment of error is overruled. VI DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HIS MOTIONS FOR JUDGMENTS OF ACQUITTAL WERE OVERRULED BY THE COURT. Appellant asserts that there was insufficient evidence of possession of the gun to support his conviction for having the weapon while under disability. This assertion is without merit. The standard used by this Court to review the sufficiency of the evidence is "whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Jenks (1991), 61 Ohio St.3d 259. We find that the average mind would be convinced of appellant's guilt beyond a reasonable doubt by the evidence presented by the State in support of possession of the handgun. Detective Shoulders saw appellant driving the Nissan Pathfinder in which the gun was found the day before the controlled delivery, during surveillance of the house. Detective Shoulders also obtained the keys to the locked Nissan during execution of the warrant. Furthermore, the Nissan glove compartment contained not only the handgun, but numerous personal papers with appellant's name on them. This evidence supports the State's theory that appellant is the owner of the Nissan and, having the vehicle under his control and possession, appellant is also in control and possession of the vehicle's contents. Appellant's motions for acquittal under Crim.R. 29 were - 13 - properly denied by the trial court. Appellant's sixth assignment of error is overruled. VII DEFENDANT WAS DENIED DUE PROCESS WHEN THE JURY FOUND THE DEFENDANT POSSESSED THE FIREARM AND BY THE SAME JURY'S VERDICT, ON ANOTHER COUNT, FOUND THAT DEFENDANT DID NOT POSSESS THE FIREARM. Appellant argues that his conviction can not stand as it is in conflict with the jury's verdict of acquittal on the charge of possession of criminal tools, to-wit: the Nissan and the handgun. Appellant's argument is without merit. First, we find that no inconsistency exists between the two verdicts of acquittal for possession of criminal tools and conviction for having a weapon while under disability. The former charge required not only possession or control of devices or articles, but also the purpose to use them criminally. State v. Oliver (1987), 31 Ohio App.3d 100. The latter charge of having a weapon while under disability requires possession or control of a firearm or dangerous ordnance and an indictment or conviction of one of the enumerated offenses in R.C. 2923.13. The jury could have logically determined that appellant had possession of the firearm found in the Nissan, but did not have the purpose to use it criminally. This would support the acquittal on count three of the indictment. Consistent with this verdict, the jury could have found possession of the firearm and a prior conviction for an offense of violence or drug abuse, as was stipulated to by appellant. This finding would support the conviction on count four - 14 - of the indictment, having a weapon while under disability. Even if we had found an inconsistency between the two verdicts, appellant's assignment of error would still be without merit. The Ohio Supreme Court has held that: The several counts of an indictment containing more than one count are not interdependent. A verdict responding to a designated count will be construed in light of the count designated, and no other. An inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count. State v. Adams (1978), 53 Ohio St.2d 223, 228, quoting Browing v. State (1929), 120 Ohio St. 62, at paragraph four of the syllabus. This law was recently followed by the Franklin County Court of Appeals, when it quoted from a Federal Supreme Court case and held: *** There is no reason to vacate respondent's conviction merely because the verdicts cannot rationally be reconciled. Respondent is given the benefit of her acquittal on the counts on which she was acquitted, and it is neither irrational nor illogical to require her to accept the burden of conviction on the counts on which the jury convicted. *** State v. Woodson (1985), 24 Ohio App.3d 143, 144, quoting United States v. Powell (1984), ____ U.S. ____, 83 L.Ed.2d 461, 471. We find that appellant's conviction is not inconsistent with his acquittal. However, if the two verdicts were inconsistent, appellant would not be denied due process by the affirmance of his conviction because counts three and four are not interdependent. Appellant's seventh assignment of error is overruled. VIII - 15 - DEFENDANT WAS UNCONSTITUTIONALLY SUBJECTED TO DOUBLE PUNISHMENT WHEN HE WAS SENTENCED FOR HAVING A WEAPON UNDER A DISABILITY AND SEPARATELY SENTENCED FOR THE SAME FIREARM. Appellant asserts that his sentencing on both the underlying offense of having a weapon under disability and the firearm specification constitutes unconstitutional double punishment. Appellant's assertion is not supported by law. Courts in Ohio have repeatedly held that the Double Jeopardy Clauses of the United States and Ohio Constitutions are not violated by the sentencing of defendants on the firearm specification, consecutive to the sentence imposed on the underlying offense: R.C. 2929.71 (additional three years of actual incarceration for offenses involving a firearm) does not create a separate offense and does not force a defendant to face multiple punishments for the same offense. Accordingly, a sentence imposed under statute does not violate R.C. 2941.45 (multiple counts) or the Double Jeopardy Clauses of the United States and Ohio Constitutions. State v. Price (1985), 24 Ohio App.3d 186, at the syllabus. See, also, State v. Loines (1984), 20 Ohio App.3d 69: It is not a violation of double jeopardy for the trial court to impose a consecutive sentence of three years prior to the sentence of the underlying felony, as it is clear that the legislature intended to permit cumulative sentencing under R.C. 2929.71. State v. Loines, supra, at paragraph three of the syllabus. Appellant's consecutive sentencing on both the firearm specification and the underlying offense of having a weapon while under disability did not constitute double punishment and was well within the intention of the legislature. Appellant's eighth assignment of error is overruled. - 16 - The jury's decision to convict appellant on the offense of having a weapon while under disability, with the specifications, and the trial court's subsequent sentencing are 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. HARPER, P.J., AND O'DONNELL, J., CONCUR. ANN DYKE 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, .