COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69620 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : MICHAEL ANDERSON : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 27, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-314247. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor BY: Randi Ostry LeHoty (#0042306) Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Donald Butler (#0005968) 75 Public Square Building Suite 1210 Cleveland, OH 44113 -2- SPELLACY, C.J.: Defendant-appellant ("appellant") appeals his jury conviction on two counts of drug trafficking in violation of R.C. 2925.03 (A)(2) and (6). Appellant assigns the following errors for our review: I. DEFENDANT-APPELLANT'S CONVICTIONS WERE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. II. THE COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR IN RE-OPENING THE CASE AFTER THE STATE RESTED AND PERMITTING A STATE WITNESS TO TESTIFY OVER THE OBJECTION OF COUNSEL AND DENIED THE APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. III. THE COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR IN ITS FAILURE TO REMAIN NEUTRAL DURING THE TRIAL AND BY REVOKING THE DEFENDANT'S BAIL AND INCARCERATING HIM WITHOUT CAUSE OVER THE OBJECTION OF COUNSEL AND DENIED THE APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. IV. PROSECUTORIAL MISCONDUCT DENIED APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. V. DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. Appellant further set forth the following two assignments of error in his supplemental brief: I. DEFENDANT-APPELLANT MICHAEL ANDERSON WAS DENIED DUE PROCESS AND A FAIR TRIAL WHERE THE TRIAL COURT GAVE INSTRUCTIONS THAT ILLEGALLY AMENDED THE INDICTMENT. II THE TWO COUNTS OF AGGRAVATED TRAFFICKING ARE ALLIED OFFENSES OF SIMILAR IMPORT WHEN THEY WERE NEITHER COMMITTED SEPARATELY NOR WITH SIMILAR IMPORT AND THE CONSTITUTIONAL -3- PROTECTION AGAINST DOUBLE JEOPARDY PROHIBITS MULTIPLE CONVICTIONS FOR THE SAME CRIMINAL CONDUCT. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. A complete review of the record reveals the following. On September 26, 1994, appellant was indicted on two counts of drug trafficking in violation of R.C. 2925.03. Count one of appellant's indictment set forth that "appellant did knowingly possess a controlled substance, to-wit: Cocaine, a Schedule II drug, being an amount equal to or exceeding three times the bulk amount." Count two of appellant's indictment set forth that "appellant did knowingly prepare for shipment, ship, transport, deliver, prepare for distribution or distribute a controlled substance, to-wit: Cocaine, a Schedule II drug, knowing or having reasonable cause to believe such drug was intended for sale or resale by the offender or another." On July 19 - 21, 1995, a jury trial was held. Subsequently, the jury returned its verdict finding appellant guilty on both counts of trafficking in drugs in violation of R.C. 2925.03. (Journal Entry, September 20, 1995). On September 20, 1995, appellant was sentenced on count one for a term of seven (7) to twenty-five (25) years, five years being actual incarceration; and on count two, appellant was sentenced to five (5) to fifteen (15) years. Both counts were to run consecutive to each other. (Journal Entry, September 20, 1995). -4- I. The history of the case reveals the following. On June 1, 1994, Mr. Doug Cislo, a U.S. postal inspector and leader of the Narcotics Interdiction team for the U.S. Post Office, intercepted a suspicious looking package addressed to Katie Woods, 9222 Miles Park Avenue, Cleveland, Ohio. The parcel originated in Oakland, California. (Tr. 33). Mr. Cislo testified that a lineup with a narcotics canine was then conducted, and the canine alerted positively to the presence of some kind of controlled substance. (Tr. 34). A search warrant was obtained, and Cislo proceeded to open the parcel. Upon opening the parcel, Cislo discovered a number of items of clothing and cylindrical shaped wrappings containing what Cislo believed to be cocaine. (Tr. 36). On June 2, 1994, after discovering the existence of cocaine in the parcel, Cislo, in conjunction with the Cleveland Police Department, conducted a controlled delivery of the parcel to 9222 Miles Park Avenue. Cislo's first attempt to deliver the parcel was conducted around 3:30 p.m. At that time, Tunisia Rogers answered the door, but informed Cislo that Katie Woods was not there. (Tr. 43). Cislo, after informing Rogers that he would return with the parcel in an hour, left the premises. Following Cislo's departure from 9222 Miles Park Avenue, the following activities were observed by the surveillance team of the Cleveland Police Department Narcotics Unit: a female exited 9222 Miles Park Avenue, walked across the street and made a telephone call from the pay phone. (Tr. 132). Subsequently, a -5- black van was observed pulling up to 9222 Miles Park Avenue, at which time, a male was observed exiting the vehicle, going to the door of the residence, having a conversation with a woman, and subsequently leaving the premises. (Tr. 133, 204). Approximately one hour later, Cislo returned to 9222 Miles Park Avenue with the parcel. Rogers answered the door and signed for the parcel under the name "Lisa Bell". (Tr. 43). Subsequently, Cislo left the premises. Approximately ten minutes later the surveillance team entered into 9222 Miles Park Avenue and executed the search warrant. Subsequently, a box containing clothes and two bags of cocaine was seized by the police. (Tr. 225). During the execution of the search warrant, Darryl Howard was observed approaching 9222 Miles Park Avenue in a black van, exiting the vehicle, and approaching the residence. Howard, appellant's employee, testified that he went to 9222 Miles Park Avenue at the request of appellant to pick up a box of clothing. (Tr. 390). Howard further stated that appellant could not pick up the clothing because he was babysitting his children. (Tr. 390). Subsequently, the police arrested Howard. (Tr. 56, 148). At trial, Rogers testified that appellant, prior to Cislo's first attempted delivery of the parcel, personally asked her to sign for a parcel which would be arriving in the mail. (Tr. 271). After Cislo left the first time, Rogers stated that she paged appellant. (Tr. 271). Rogers testified that appellant subsequently arrived at 9222 Miles Park Avenue driving a black -6- van. (Tr. 276). At this time, Rogers informed appellant that the postman would not let her sign for the parcel and appellant told her to tell the postman when he returned that she had called Katie Woods and was told to sign for the parcel. (Tr. 277). At trial, appellant testified on his own behalf and stated that on June 2, 1994, he was remodeling a house on Forrest Avenue. (Tr. 562). Appellant further stated that he did not have contact with Rogers that day. (Tr. 562). However, appellant did testify that he sent his brother, Maron Anderson, to 9222 Miles Park Avenue on June 2, 1994, to retrieve tools and clothing which had been left at the residence after appellant had completed renovations. However, Maron Anderson testified that he was unable to retrieve the items that appellant wanted because the woman answering the door would not let him in. (Tr. 492). Evidence was also presented at trial regarding appellant's Cellular One telephone. In particular, information was received regarding calls made from appellant's cellular one number to Oakland, California in May 1994 and June 1994. Specifically, cellular one telephone records revealed numerous calls made on June 2, 1994, from appellant's cellular phone to an unidentifiable number in Oakland, California. Appellant contends, however, that these phone calls were not made in connection with any type of narcotics trafficking. Rather, the calls were made in connection with appellant's duties as his son's talent agent. (Tr. 537). II. -7- In his first assignment of error, appellant contends that his convictions were against the manifest weight of the evidence. In particular, appellant argues that his convictions and sentences on two counts of aggravated trafficking were not supported by sufficient evidence. We disagree. The standard for our review for manifest weight of the evidence is whether, after viewing the evidence in a light most favorable to the prosecution, a reasonable jury could have found the essential elements of the crime beyond a reasonable doubt. State v. Martin (1986), 21 Ohio St.3d 91, 95. It is not, however, the function of an appellate court to substitute its judgment for that of the factfinder. State v. Jenks (1991), 61 Ohio St.3d 259, 279. As this Court has stated: The weight to be given the evidence and the credibility of witnesses are determinations to be made by the triers of fact. State v. Thomas (1982), 70 Ohio St.2d 79. If there was sufficient evidence for the triers of fact to find a defendant guilty beyond a reasonable doubt this court will not reverse the guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St.3d 305, paragraph four of the syllabus, certiori denied (1989), 489 U.S. 1040. State v. Standberry (February 15, 1996), Cuyahoga App. No. 69079, unreported. R.C. 2925.03(A)(6) provides that no person shall knowingly "[p]ossess a controlled substance in an amount equal to or exceeding three times the bulk amount, but in an amount less than one hundred times that amount." The term "possession" is defined in R.C. 2925.01(L) as follows: -8- "Possess" or "possession" means 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. Interpreting the term "possession," Ohio courts have held that possession may be actual or constructive. State v. Thomas (1995), 107 Ohio App.3d 239. To establish constructive possession, the state must prove that the defendant was able to exercise dominion or control over the object, even though that object may not be within his immediate physical possession. Id. at 244, citing State v. Boyd (1989), 63 Ohio App.3d 790, 796. It must also be shown that the person was "conscious of the presence of the object." State v. Hankerson (1982), 70 Ohio St.2d 87, 91. R.C. 2925.03(A)(6) further requires that a defendant did "knowingly" possess the illegal drugs in order to be guilty of aggravated trafficking. Thus, appellant must be "conscious," i.e., a defendant must have knowledge of the thing or substance which he is alleged to have possessed. Thomas, supra. In the present case, a parcel was sent via the U.S. Postal Service from Oakland, California. The parcel was intercepted, and it was determined that it contained cocaine, a schedule II drug, exceeding by weight, three times the bulk amount for cocaine. (Tr. 432). Further, the record reflects that appellant was waiting for a package to be delivered to 9222 Miles Park Avenue, and in anticipation of the delivery, appellant asked Ms. Rogers to accept and sign for the parcel. Following the first -9- attempted delivery, Ms. Rogers paged appellant. Subsequently, appellant drove to 9222 Miles Park Avenue and instructed Ms. Rogers to inform the postal delivery person that she had spoken with Katie Woods who told her to sign for the parcel. Furthermore, it is clear that appellant instructed Darryl Howard to go to 9222 Miles Park Avenue to retrieve the parcel. The record further reflects that appellant, on the day at issue, made numerous cellular one telephone calls to an unidentified number in Oakland, California, the origin of the parcel. Thus, we find that there was sufficient evidence submitted at trial to support the trial court's finding that appellant constructively possessed the illegal drugs found in the parcel. Furthermore, we find that appellant had knowledge of the illegal drugs and, therefore, knowingly possessed the drugs. Next, we must address whether appellant's conviction for drug trafficking in violation of R.C. 2925.03 (A)(2) was against the manifest weight of the evidence. R.C. 2925.03 (A)(2) states that "no person shall knowingly *** prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe the controlled substance is intended for sale or resale by the offender or another." In order to sustain a conviction for drug trafficking, the state must produce direct or circumstantial evidence that the defendant did one of the following: (1) knowingly prepare the cocaine for shipment; (2) ship, transport or deliver the cocaine; -10- (3) prepare the cocaine for distribution; or (4) distribute the cocaine. See, State v. Parker (August 1, 1991), Cuyahoga App. No. 58860, unreported; State v. Monroe (November 8, 1990), Cuyahoga App. No. 59705, unreported. A few circumstances to be considered in evaluating the evidence are the nature of the discovered substance, and the accused's dialogue and course of conduct. State v. Patterson (1982), 69 Ohio St.2d 445, 447; State v. Ballard (May 31, 1990), Cuyahoga App. No. 56676, unreported. As stated supra, evidence was presented that the U.S. Postal Service intercepted a parcel containing cocaine in excess of three times the bulk amount for cocaine. Moreover, evidence revealed that appellant, between May 1994 and June 1994, made numerous cellular one telephone calls to Oakland, California, a majority of which were made on June 2, 1994. Evidence was also presented that appellant instructed Tunisia Rogers to accept the package being delivered to her address; that appellant on one occasion went to 9222 Miles Park Avenue; and that on a separate occasion appellant sent Darryl Howard to 9222 Miles Park Avenue in appellant's black van. Here the state provided competent, credible evidence from which the triers of fact could find that appellant violated R.C. 2925.03(A)(2). The parcel contained a significant amount of cocaine. A reasonable conclusion of such possession is that appellant intended not to personally consume the cocaine, but knowingly prepared it for shipment or distribution. Hence, his -11- conviction for the offense is not against the manifest weight of the evidence. Accordingly, appellant's first assignment of error is overruled. III. In his second assignment of error, appellant asserts that the trial court erred in re-opening the case after the state rested and permitting a state witness to testify over the objection of counsel. Determination of whether to permit the state to reopen its case after it has rested is within the sound discretion of the trial court, and a court's action in that regard will not be disturbed on appeal unless under the circumstances it amounted to an abuse of discretion. City of Columbus v. Grant (1981), 1 Ohio App.3d 96; State v. Pertee (November 22, 1995), Wayne App. No. 95CA0033, unreported. To constitute an abuse of discretion, a trial court's decision must be unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. In the present action, immediately after resting its case, the state requested that the trial court allow it to reopen its case for the purpose of allowing Miss Cynthia Lewis, a chemical analyst in the Scientific Investigation office of the Cleveland Police Department, to testify regarding her analysis of the cocaine found in the parcel. (Tr. 421). The trial court, in granting the state's request, stated: -12- THE COURT: All right. I almost forgot about it myself. MR. MACK: Judge, just, for the record, I object. THE COURT: All right. I am going to permit it in the interest of justice. And this is a search for the truth and justice, and that is an essential part of the case. So I am going to permit it. (Tr. 421). It is apparent from the request made by the state, and the trial court's response to the state's request, that the state originally intended to call Miss Lewis to testify as to the contents of the packages placed in the parcel. It is also apparent that the state inadvertently omitted calling Miss Lewis to testify. Criminal cases are to be decided based upon the law as applied to their true facts. Juries, whenever possible, should be provided all available relevant evidence. Pertee, supra. Thus, the trial court did not abuse its discretion in this action by permitting the state to reopen its case in order to permit Miss Lewis to testify regarding the contents of the packages placed in the parcel. Accordingly, appellant's second assignment of error is overruled. IV. In his third assignment of error, appellant asserts the trial court erred in revoking his bail and incarcerating him without cause. In the case sub judice, the trial court stated the following: -13- *** the Court is most concerned in this case, that the bond is woefully inadequate in the case at hand. And I am referring to the statute, and in comparing the totality of the circumstances in this case with the requirement that the bond be set, and the standards that the Court must apply in considering a bond. This Court finds that the evidence in this case is strong. *** All of these things lend itself (sic) to the Court finding that the $20,000.00 bond is woefully inadequate. Accordingly, the Court orders a $100,000.00 bond in this case. And the Defendant is to be remanded to the County Sheriff until such time as this trial is over. (Tr. 320-321). In Ohio, an allegation that bail is excessive or that the trial court abused its discretion in setting bail is properly raised in a petition for habeas corpus. In Re De Fronzo (1977), 49 Ohio St.2d 271; State, ex rel. Cola v. McFaul, et al. (February 7, 1996), Cuyahoga App. No. 70154, unreported; In re Gentry (1982), 7 Ohio App.3d 143. Therefore, we note that any error with regard to bail prior to conviction is now moot. Under App.R. 8(A), appellant could have moved the trial court or this court to set or reduce bail pending appeal. Accordingly, appellant's third assignment of is moot. V. In his fourth assignment of error, appellant contends that prosecutorial misconduct denied him his constitutional right to a fair trial. In particular, appellant asserts that the prosecutor, through intimidation, caused Tunisia Rogers and Darryl Howard to testify other than truthfully. -14- The test for prosecutorial misconduct is whether remarks are improper and, if so, whether they prejudicially affected the substantial rights of the accused. State v. Lott (1990), 51 Ohio St.3d 160, 165, citing State v. Smith (1984), 14 Ohio St.3d 13, 14-15. In the present case, appellant asserts that on two separate occasions, the prosecutor threatened witnesses regarding the testimony which they were going to give. First, appellant contends that the prosecutor acted improperly during his questioning of Tunisia Rogers. In particular, appellant contends the following dialogue between Ms. Rogers and the prosecutor was improper: Q: Did you have an agreement with the State of Ohio to plead guilty to that charge? A: Yes. Q: Okay. And in exchange to (sic) allowing you to plead guilty to count two of the indictment, what did you agree to do for the State of Ohio? A: Testify to my statement. (Tr. 269). Appellant further contends that the prosecutor acted inappropriately when, out of presence of the court, the prosecutor informed Darryl Howard that if he did not testify consistently with his previous statement, his plea agreement would not be upheld. (Tr. 383-389). The Ohio Supreme Court has consistently held that "'[i]mproper remarks of counsel during argument, unless so flagrantly improper -15- as to prevent a fair trial, should be at once objected to and exception taken; otherwise error cannot be predicated upon the remarks alleged to have been improper.'" State v. Johnson (1989), 46 Ohio St.3d 96, 102 citing State v. DeNicola (1955), 163 Ohio St. 140. Failure to timely object to any improper prosecutorial comment must be reviewed under a plain-error analysis under Crim.R. 52(B). Thus, the issue becomes whether, but for the prosecutor's misconduct, the verdict would have been otherwise. Johnson, supra. Further, "[n]otice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long (1978), 53 Ohio St.2d 91, 96-97. In the present case, appellant failed to object to the alleged improper conduct of the prosecutor. Therefore, we must review the prosecutor's conduct under a plain error analysis. After a complete review of the record, we hold that the evidence in this case was compelling and, therefore, we cannot say that but for the alleged errors made by the prosecutor, both in the presence of the jury and out of the presence of the jury, that the jury's verdict would have been otherwise. Nor can we say that the prosecutor's conduct created a manifest miscarriage of justice. Accordingly, appellant's fourth assignment of error is overruled. VI. -16- In his fifth assignment of error, appellant asserts that he was denied effective assistance of counsel. In particular, appellant contends that his trial counsel erred when he failed to call defense witnesses, as well as when he insisted that appellant testify on his own behalf. The standard for reviewing claims for ineffective assistance of counsel was set forth in Strickland v. Washington (1984), 466 U.S. 688, and adopted in Ohio in State v. Bradley (1989), 42 Ohio St.3d 136. In reviewing such a claim, we must first determine whether counsel's assistance was ineffective, that is, whether counsel's performance fell below an objective standard of reasonable representation and was violative of any of his essential duties to the client. Strickland, supra. If this first prong is established, we must then determine whether or not the defense was actually prejudiced by counsel's ineffectiveness such that the reliability of the outcome of trial is suspect. This requires showing that there is a reasonable probability that, but for counsel's unprofessional error, the outcome of the trial would have been different. Id. at 691. This Court must first consider whether defense counsel's performance was deficient. Initially appellant claims that trial counsel failed to call various witnesses to testify on his behalf, and therefore counsel's performance was deficient. In particular, appellant contends trial counsel erred in failing to call appellant's ex-wife who would have testified she made calls to California in an effort to contact the talent agent for her -17- son. Appellant further asserts trial counsel failed to call Ken Anderson and Richard Woods to testify that appellant was on Forrest Avenue June 2, 1994, and that appellant never left the premises until the close of the evening. Deciding which witnesses to call is within the purview of defense counsel. State v. Coulter (1992), 75 Ohio App.3d 219. Failure to call any particular witness, by itself, does not constitute ineffective assistance of counsel. One can only speculate about what the testimony of appellant's wife, Ken Anderson and Richard Woods might have been. Appellant was represented by different counsel at trial and, while it may be tempting to apply judicial hindsight, to envision a different scenario had appellant's wife, Ken Anderson and Richard Woods testified, the court in Strickland set forth: Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. *** A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, 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. -18- Strickland, supra at 689. There is no allegation that defense counsel did not investigate, did not know about the existence of the witnesses, or did not know what they would testify to. The only allegation is that they were not called. This does not meet the first part of the Strickland test because it does not establish failure on the part of counsel. The decision not to call the witnesses is not any indication of deficient performance by trial counsel, and appears to be reasonable trial strategy. Appellant further contends trial counsel was ineffective because he permitted appellant to testify in his own defense. We find appellant and his counsel made a tactical decision to have appellant take the stand. This does not amount to ineffective assistance by trial counsel, in that such a decision does not fall below an objective standard of reasonable representation, nor was trial counsel's decision violative of any of his essential duties to appellant. Finding that the first prong of the Strickland test, deficient performance, has not been established with regard to either of appellant's allegations, we do not need to reach the second, "but for," part of the test. Based on the foregoing, appellant's fifth assignment of error is not well taken. Accordingly, appellant's fifth assignment of error is overruled. VII. -19- In his first supplemental assignment of error, appellant asserts that the trial court erred by instructing the jury on the law of complicity and conspiracy. We disagree. In the present case, the trial court, following its charge to the jury regarding the specific elements required to find appellant guilty of aggravated drug trafficking under R.C. 2925.03, further instructed the jury that it may consider the law of complicity and conspiracy when determining whether appellant was guilty of aggravated drug trafficking. In particular, the trial court stated: You may consider in your deliberations ladies and gentlemen, whether the law of complicity or conspiracy, or one of the other, or both is implied. (Tr. 756). Subsequently, the trial court went on to instruct the jury as to the theories of complicity and conspiracy. (Tr. 756- 758). "The statutory commandments are clear. The evidence, as well as the law, governs the charge of the court in a criminal case, and the charge must be consistent with the evidence." State v. Loudermill (1965), 2 Ohio St.2d 79, 80. In light of the entire record, evidence presented by the state tended to show the part appellant played in trafficking cocaine from Oakland, California to 5222 Miles Park Avenue in Cleveland, Ohio. In particular, evidence was set forth at trial that appellant, on two separate occasions, instructed Ms. Rogers to accept a package being delivered to her residence. Evidence was -20- also presented that the parcel which appellant instructed Ms. Rogers to accept contained a large quantity of cocaine. Furthermore, evidence was adduced at trial that appellant sent his employee, Darryl Howard, to 5222 Miles Park Avenue to retrieve the package for him. Moreover, cellular telephone bills evidencing numerous phone calls made by appellant to Oakland, California were presented at trial. When the evidence adduced at trial could reasonably be found to have proven the defendant guilty of complicity or conspiracy, jury instructions given by the trial court on both subjects are proper. See State v. Perryman (1976), 49 Ohio St.2d 14, paragraph five of the syllabus, vacated on other grounds (1978), 438 U.S. 911. Therefore, based on the foregoing, the trial court's decision to instruct the jury on both complicity and conspiracy was factually justified by the evidence presented at trial. See Loudermill, supra; State v. Washington (September 1, 1993), Hamilton App. No. C-920615, unreported; State v. Slipcevic (December 8, 1995), Ashtabula App. No. 94-A-0061, unreported. Further, because it was in the province of the jury to assess the credibility of each of the witnesses and to determine which version of the testified events to believe, we hold the evidence was sufficient for the jury to have inferred complicity or conspiracy in the commission of the offense charged. "Conspiracy and common purpose, among two or more persons, to commit a crime need not be shown by positive evidence but may be inferred from -21- circumstances surrounding the act and from defendant's subsequent conduct." State v. Pruett (1971), 28 Ohio App.2d 29, 34. Based on the foregoing, it is clear that the trial court did not abuse its discretion by instructing the jury on both complicity and conspiracy, nor were the trial court's instructions prejudicial to appellant. Accordingly, appellant's first supplemental assignment of error is overruled. VIII. In his second supplemental assignment of error, appellant asserts that the two counts of aggravated trafficking are allied offenses of similar import when they were neither committed separately nor with similar import and the constitutional protection against double jeopardy prohibits multiple convictions for the same criminal conduct. Both R.C. 2925.03(A) (2) and (6) have possession of a controlled substance as a requisite element of the separate offenses. However, R.C. 2925.03 (A)(2) imposes the additional element that possession of the controlled substance is incident to preparation for shipment, transportation, delivery or distribution of the drug through a sale. State v. Mateo (August 17, 1989), Cuyahoga App. No. 55833, unreported. Since the elements of R.C. 2925.03(A) (2) and (6) do not correspond, they are not allied offenses of similar import. Id. Accordingly, appellant's second supplemental assignment of error is overruled. Judgment affirmed. -22- -23- 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. NAHRA, J. and PATTON, J., CONCUR. LEO M. SPELLACY CHIEF JUSTICE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .