COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70137 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION SOLOMON STEVENSON, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 17, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-324484 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Richard Wise Assistant Prosecuting Attorney The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Miles A. Camp WEAVER & ASSOCIATES 1370 West Sixth Street No. 213 Cleveland, Ohio 44113 -2- NAHRA, J.: Solomon Stevenson appeals his conviction for one count of drug abuse in violation of R.C. 2925.11 and also for one count of drug trafficking under R.C. 2925.03. For the following reasons we affirm the convictions. During the early evening of April 25, 1995, two Cleveland police officers patrolled near a vacant lot. Both officers testified that the lot was a notorious site for drug traficking. From their police cruiser, the officers saw Stevenson and a third party standing together in the otherwise deserted lot. At a distance of less than twenty feet from Stevenson, the officers stopped their patrol car and saw what they thought to be a brown piece of paper in appellant's outstretched right hand. The third party, a woman, appeared to examine the paper. When the appellant noticed the presence of the marked police car, both he and the woman quickly turned and walked away from the officers' car. Both officers testified that upon turning away, Stevenson dropped the brown paper to the ground. The officers exited their vehicle, apprehended appellant, and recovered the brown piece of paper from where Stevenson dropped it. Inspection of the paper yielded eight rocks of a substance which tested positive as crack cocaine. Appellant was arrested and indicted on one count of drug abuse, one count of drug trafficking and a third count which was dismissed at trial pursuant to Crim.R. 29. The first count included a "furthermore clause" for a prior drug related -3- conviction. Prior to trial, the defense moved to bifurcate the trial to prevent the jury from hearing evidence of the prior drug conviction. The trial judge denied the motion on the ground that the existence of the prior offense constituted an element of the crime charged and therefore must be proved. The jury returned a verdict of guilty on both counts and also found that Stevenson had a prior drug abuse conviction. Under R.C. 2925.11(C)(1), the conviction on the first count increased in severity from a fourth degree felony to a third degree felony. Stevenson appeals the convictions and asserts three assignments of error. I. Appellant's first assignment of error states: APPELLANT WAS DENIED A FAIR TRIAL WHEN THE TRIAL COURT DENIED APPELLANT'S MOTION FOR BIFURCATION OF THE FURTHERMORES (SIC) The Ohio Supreme Court, in State v. Gordon (1971), 28 Ohio St.2d 45, 48, 57 O.O.2d 180, 276 N.E.2d 243, held that where a prior offense is an element of the crime charged, the prosecution must prove its existence as a matter of fact. Accord State v. Ball (Feb. 17, 1994), Cuyahoga App. No. 64668, unreported. The court in Gordon also stated that proof of a previous conviction was properly placed before the jury. Gordon, 28 Ohio St.2d at 50. Thereafter, in State v. Allen (1987), 29 Ohio St.3d 53, 29 OBR 436, 506 N.E.2d 199, the Ohio Supreme Court limited the -4- application of the rule articulated in Gordon. Explaining the Gordon holding, the Court stated: It [the prior conviction] transformed the crime itself by increasing its degree. In such a case, the prior conviction is an essential element of the crime, and must be proved by the state. Allen, 29 Ohio St.3d at 54. The Supreme Court then held: [W]here the existence of a prior conviction enhances the penalty for a subsequent offense, but does not elevate the degree thereof, the prior conviction is not an essential element of the subsequent offense, and need not be alleged in the indictment or proved as a matter of fact. Id. at 55. Several years later, the Ohio Supreme Court relied upon Allen in its one sentence disposition of State v. Fittro (1993), 66 Ohio St.3d 16, 607 N.E.2d 447. In Fittro, the Supreme Court reversed a decision of this court, State v. Fittro (May 16, 1991), Cuyahoga App. No. 58227, unreported, which held that the trial court's refusal to bifurcate the trial constituted reversible error. Id. At trial, the state charged Fittro with a violation of R.C. 2925.03 and the indictment contained a prior drug conviction specification. Despite a pre-trial motion to bifurcate the trial, Fittro's prior drug related conviction was revealed to the jury before deliberation. Although the prior conviction increased the degree of the offense and thus became an element of the crime charged, this court reversed the conviction and ordered a new trial on the ground that the trial court had no discretion to deny Fittro's motion to bifurcate the trial. Id. The Ohio Supreme Court reversed on authority of State v. Allen -5- and thereby reaffirmed the basic principle that where the prior conviction amounts to an element of the crime, its existence must be proved to the jury. Fittro, 66 Ohio St.3d at 16. In the instant appeal, the material statute, R.C. 2925.11(C)(1) provides in pertinent part: * * * drug abuse is a felony of the fourth degree, and, if the offender previously has been convicted of a drug abuse offense, drug abuse is a felony of the third degree. Because R.C. 2925.11(C)(1) operates to increase the degree of the offense and not merely the penalty, the case sub judice falls squarely within the ambit of Allen and Fittro. Indeed, appellant's conviction and first assignment of error strongly resemble those in Fittro. As such, we are bound by precedent and hold that the trial court did not commit reversible error. Appellant's reliance on State v. Arrington (1975), 42 Ohio St.2d 114, 71 O.O.2d 81, 326 N.E.2d 667, State v. Murdock (1961), 172 Ohio St. 221, 15 O.O.2d 372, 174 N.E.2d 543, and State v. Tolliver (1986), 33 Ohio App.3d 110, 514 N.E.2d 922, is misplaced. As candidly acknowledged by appellant, these cases discuss the use of prior convictions under the rules of evidence and for impeachment purposes. Additionally, State v. Riggins (1986), 35 Ohio App.3d 1, 519 N.E.2d 397, does not control. Accordingly, appellant's first assignment of error is not well taken. II. Appellant's second assignment of error states: -6- THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL BY THE ACTS AND OMISSIONS OF HIS ATTORNEY WHICH WERE SO SERIOUS AS TO DEPRIVE THE APPELLANT OF A FAIR TRIAL. Quoting paragraphs one and two of the syllabus from State v. Bradley, (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, this court in State v. Young (February 22, 1996), Cuyahoga App. Nos. 69010, 69011, unreported, summarized the proper standard of review: Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. State v. Lytle (1976), 42 Ohio St.2d 391; Strickland v. Washington (1984), 466 U.S. 668, followed. To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsels' [sic] error, the result of the trial would have been different. A reviewing court must presume that a properly licensed attorney executes his legal duty to competently represent the client. State v. Smith (1985), 17 Ohio St.3d 98, 100, 417 N.E.2d 1128; State v. Houser (May 30, 1996), Cuyahoga App. No. 69639, unreported. To show a reasonable probability of ineffective assistance of counsel there must be probability sufficient to undermine the reviewing court's confidence in the outcome reached at trial. Houser, supra. Appellant's second assignment of error is predicated on two grounds. First, Stevenson contends that defense counsel's limited argument in support of the motion to bifurcate amounted to ineffective assistance of counsel. In light of the holdings -7- of the Ohio Supreme Court in Allen and Fittro, this argument lacks merit. Counsel's failure to support more vigorously an incorrect position does not fall below an "objective standard of reasonable representation". Moreover, given the substantial evidence of appellant's guilt, it is not probable that the outcome would have been different had counsel more strenuously advanced his position. Second, Stevenson asserts that counsel's decision to not present defendant's testimony at trial was deficient and prejudicial. Generally, counsel's strategic decisions must be respected. State v. Young, supra. The naked assertion that defense counsel refused to permit defendant to testify does not amount to ineffective assistance of counsel. State v. Butcher (June 4, 1987), Cuyahoga App. Nos. 51850, 51851, unreported. Rather, defendant must make an overt act which demonstrates to the trial court the accused's desire to testify. Id. Nothing in the record suggests that Stevenson wished to testify, or was capable of presenting exculpatory evidence. Indeed, Stevenson's acquiesence in counsel's decision not to place him on the stand precludes his later assertion that his right to testify has been violated. See Butcher, supra. As such, counsel's refusal to permit Stevenson to testify does give rise to a claim of ineffective counsel. On each basis for appeal, appellant's second assignment of error is overruled. III. -8- Appellant's final assignment of error states: THE VERDICT AND JUDGMENT RENDERED BELOW WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND INSUFFICIENT AS A MATTER OF LAW (SIC) We will treat this assignment of error as a combined challenge to the weight of the evidence and the sufficiency of the evidence. First, in State v. Mann, this court stated the standard of review for addressing a challenge to the weight of the evidence. "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. * * * See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42 [102 S.Ct. 2211, 2216, 2218, 72 L.Ed.2d 652, 659, 661]." State v. Mann (1993), 93 Ohio App.3d 301, 310, 638 N.E.2d 585, quoting, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720. A reviewing court will not reverse a conviction where there is substantial evidence upon which the trier of fact could conclude reasonably that the elements of the offense were proven beyond a reasonable doubt. Mann, supra. The weight assigned to the evidence and its credibility are primarily for the trier of fact. State v. DeJohn (June 6, 1996), Cuyahoga App. No. 69297, unreported. At trial, only the prosecution presented evidence. The state presented a consistent account of the facts which the jury found credible. As such, we cannot say that the "jury lost its -9- way" or that the trial resulted in a "miscarriage of justice" and accordingly hold that the conviction is supported by the manifest weight of the evidence. See Mann, supra. Stevenson's challenge to the sufficiency of the evidence invokes a different standard of appellate review. Recently, in State v. Barb (June 13, 1996), Cuyahoga App. No. 69130, unreported, this court reviewed the appropriate standard. When reviewing a challenge to the sufficiency of the evidence, an appellate court must view the evidence in a light most favorable to the prosecution and determine if any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259. R.C. 2925.11(A) defines the elements of drug abuse: No person shall knowingly obtain, possess, or use a controlled substance. Both arresting officers testified at trial that they witnessed Stevenson holding a piece of brown paper in his hand. Each testified that the appellant dropped the paper to the ground when he realized the presence of the officers. The officers testified that once they secured custody of the appellant, they immediately retrieved the paper which contained the controlled substance. Both Stevenson's knowledge and possession can be proven beyond a reasonable doubt by these facts. R.C. 2925.03(A) states in pertinent part: (A) No person shall knowingly do any of the following: (1) * * *; -10- (2) 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; * * *. The prosecution presented no direct evidence demonstrating that Stevenson transported the cocaine to the vacant lot or prepared it for sale. However, a conviction may be upheld where there is sufficient circumstantial evidence proving each element of the crime charged. State v. Giles (May 2, 1996), Cuyahoga App. No. 69367, unreported. While it remains quite possible that appellant purchased the drugs moments before the officers arrived at the scene, and that he bought them in the condition in which he displayed them to the woman, there exists sufficient circumstantial evidence to support his conviction. Stevenson did not live in the vacant field. Testimony at trial established that appellant's home address was many city blocks from the vacant field. That he somehow transported the cocaine to the vacant lot is a reasonable inference. Stevenson's intent to sell the drugs is properly demonstrated by his display to the potential buyer. Thus, in a light most favorable to the prosecution, the circumstantial evidence adduced at trial is sufficient to support the conviction on count two. For the forgoing reasons, appellant's third assignment of error is overruled. -11- Having overruled all three assignments of error, appellant's conviction is 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. SPELLACY, C.J., and HARPER, J., CONCUR. JOSEPH J. NAHRA JUDGE 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 .