COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70618 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION ST. AUBYN BURNETT : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 20, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-330762 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES (#0015495) Cuyahoga County Prosecutor BY: ARTHUR A. ELKINS (#0061094) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender BY: SCOTT R. HURLEY (#0063858) Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113-1569 - 2 - SPELLACY, J.: Defendant-appellant, St. Aubyn Burnett, ("appellant") appeals from his conviction of drug trafficking in violation of R.C. 2925.03(A)(2), drug abuse in violation of R.C. 2925.11 and possession of criminal tools in violation of R.C. 2923.24. Appellant assigns the following errors for our review: I. THE EVIDENCE WAS INSUFFICIENT TO CONVICT APPELLANT OF COUNT ONE, AGGRAVATED TRAFFICKING, IN VIOLATION OF R.C. 2925.03(A)(2). II. THE EVIDENCE WAS INSUFFICIENT TO CONVICT APPELLANT OF COUNT THREE, POSSESSION OF CRIMINAL TOOLS, IN VIOLATION OF R.C. 2923.24. III. THE TRIAL COURT IMPROPERLY SENTENCED APPELLANT TO SEPARATE CONSECUTIVE SENTENCES FOR COUNT ONE [AGGRAVATED TRAFFICKING] AND COUNT TWO [DRUG ABUSE] SINCE THESE COUNTS CONSTITUTE ALLIED OFFENSES OF SIMILAR IMPORT, PURSUANT TO R.C. 2941.25, AND MULTIPLE CONVICTIONS THEREON CONSTITUTE A DENIAL OF APPEL- LANT'S RIGHT AGAINST DOUBLE JEOPARDY GUARANTEED BY ART. I, SECT. 10 OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. IV. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN COUNSEL FAILED TO OBJECT TO MULTIPLE PUNISHMENTS FOR ALLIED OFFENSES OF SIMILAR IMPORT. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. - 3 - I. On December 1, 1995, appellant was issued a three-count indictment. Count I charged appellant with drug trafficking, in violation of R.C. 2925.03(A)(2). Count II charged appellant with drug trafficking, in violation of R.C. 2925.03(A)(4). Count III charged appellant with possession of criminal tools, in violation of R.C. 2923.24. On March 27, 1996, Count II of appellant's indictment was amended charging appellant with drug abuse, in violation of R.C. 2925.11. (Tr. 169-170). On March 27, 1996, a jury trial was held. Subsequently, the jury found appellant guilty on all three counts. On April 10, 1996, appellant was sentenced to a term of one year on each count. Count II was to run consecutive to Count I; and Count III was to run concurrently with Counts I and II. II. On June 8, 1995, Officers James Cudo and Jeff Follmer of the Cleveland Police Department received several citizen complaints about suspected drug activity in the area of East 36th Street and Community College Avenue, Cleveland, Ohio. After receiving the complaints, the officers parked their zone car near 3702 Community College Avenue and proceeded to walk toward 3652 Community College Avenue. (Tr. 195). Upon their arrival, the officers observed appellant make some sort of transaction with another male. (Tr. 198). Both officers observed what appeared to be a plastic bag in appellant's left hand and noticed that appellant was getting ready - 4 - to exchange something in the plastic bag with the other male. (Tr. 198). As the officers continued to approach the two men, both males took off running. (Tr. 199). Officers Cudo and Follmer proceeded to pursue appellant. Further, Officer Cudo radioed other patrol cars in the area for their assistance in apprehending appellant. (Tr. 203). Subsequently, Officers Wayne Leon and Michael Qualey responded to Officer Cudo's broadcast and helped in the eventual apprehension of appellant. Prior to apprehending appellant, Officer Leon observed appellant reach into his left pocket with his left hand, pull out a baggy and throw it to the ground. (Tr. 262). Officers Cudo and Follmer also observed appellant reach into his pocket with his left hand and throw a plastic object to the ground. (Tr. 203, 296). Appellant was apprehended. Officers Cudo and Follmer conducted a search incident to arrest and found three hundred thirty-nine dollars ($339.00) and a pager upon appellant's person. (Tr. 208, 299). Officer Leon picked up the plastic bag which he had observed appellant throw to the ground and gave it to Officer Cudo who determined that the bag appeared to contain several rocks of crack cocaine. Cynthia Lewis of the Scientific Investigation Unit of the Cleveland Police department subsequently examined the contents of the plastic bag. Ms. Lewis determined that the bag contained 12 unit doses of crack cocaine weighing 1.65 grams. (Tr. 326-333). - 5 - Appellant's wife, Julilah Burnett, testified at trial. In particular, Mrs. Burnett testified that she had given appellant three hundred and twenty-five dollars on the day in question to pay bills. (Tr. 347). Appellant's neighbor, Pamela Nelson, also testified. Ms. Nelson stated that, on June 8, 1995, she observed appellant running from the police. (Tr. 361). However, Ms. Nelson stated that she did not observe appellant discard anything from his pockets while he was being pursued. Ms. Nelson did, however, testify that she observed the police remove money and a pager from appellant's person. (Tr. 369). III. In his first assignment of error, appellant contends that insufficient evidence existed to convict him on Count I, aggravated trafficking, in violation of R.C. 2925.03(A)(2). An appellate court's function when reviewing a claim of insufficient evidence was affirmatively set forth by the Ohio Supreme Court in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, as follows: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. - 6 - Based upon our review of the record sub judice, construing the evidence in the light most favorable to the prosecution, we find any rational trier of fact could have properly found beyond a reasonable doubt that defendant committed the offense of aggravated trafficking. In the present case, appellant was charged and convicted of aggravated trafficking in violation of R.C. 2925.03(A)(2). R.C. 2925.03(A)(2) states: (A) No person shall knowingly do any of the following: * * * (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 * * *. Appellant asserts the State failed to prove that the rocks of crack cocaine found in the plastic bag were for anything but personal use. Thus, appellant contends, mere possession of cocaine is insufficient to support a conviction under R.C. 2925.03(A)(2). In the present case, evidence presented by the prosecution, if believed, indicated that appellant was involved in a hand-to-hand drug transaction with another individual in a territory of high drug sales activity. Furthermore, both officers indicated that they observed appellant holding a plastic bag during the transaction. Moreover, eyewitness testimony of the officers who apprehended appellant indicated that appellant discarded a bag of - 7 - crack cocaine from his person immediately prior to being appre- hended. Subsequently, the arresting officers testified that they found $339.00 and a pager on appellant's person. Under the totality of the circumstances, when viewed in the light most favorable to the prosecution, the jury could reasonably infer from the evidence presented in the case sub judice that appellant did knowingly prepare for shipment, shipped, transported, delivered, prepared for distribution or distributed cocaine knowing or having reasonable cause to believe the cocaine was intended for sale or resale in violation of R.C. 2925.03(A)(2). The aforemen- tioned evidence and testimony amply support the charge of drug trafficking, in violation of R.C. 2925.03(A)(2). Accordingly, appellant's first assignment of error is overruled. IV. In his second assignment of error, appellant challenges the sufficiency of the evidence to sustain his conviction of possession of criminal tools in violation of R.C. 2923.24. R.C. 2923.24 states as follows: (A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally. (B) Each of the following constitutes prima- facie evidence of criminal purpose: (1) Possession or control of any dangerous ordnance, or the materials or parts for making dangerous ordnance, in the absence of circumstances indicating such dangerous - 8 - ordnance, materials, or parts are intended for legitimate use; (2) Possession or control of any substance, device, instrument, or article designed or specially adapted for criminal use; (3) Possession or control of any substance, device, instrument, or article commonly used for criminal purposes, under circumstances indicating such item is intended for criminal use. (C) Whoever violates this section is guilty of possessing criminal tools, a felony of the fourth degree. As stated supra, sufficient evidence exists where, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. See Jenks, supra. A pager and money in the amount of $339.00 were found in the possession of appellant at the time he was arrested. Possession of a pager, which, as the police testified, is a known device for requesting a drug sale, and money used in drug activity is sufficient to support a conviction under R.C. 2923.24. State v. Freeman (November 22, 1995), Cuyahoga App. No. 68320, unreported, citing State v. McShan (1991), 77 Ohio App. 3d 781; State v. Powell (1993), 87 Ohio App.3d 157. Thus, we find no error in the trial court finding appellant guilty of possession of criminal tools. Accordingly, appellant's second assignment of error is overruled. V. - 9 - Appellant's third assignment of error concerns his convictions for drug trafficking, R.C. 2925.03(A)(2), and drug abuse, R.C. 2925.11. He argues that R.C. 2925.11 and R.C. 2925.03(A)(2) are allied offenses of similar import, thereby requiring a vacation of the drug abuse conviction regardless of whether the issue was raised in the trial court. Initially, as noted by appellant, he failed to raise an allied offense of similar import argument in the trial court. This court is firm in its position that pursuant to State v. Comen (1990), 50 Ohio St.3d 206, this claimed error is waived when it is not raised in the trial court. State v. Sapp (September 5, 1996), Cuyahoga App. No. 69429, unreported. Assuming arguendo the finding of waiver is inapposite with recent decisions of the Supreme Court of Ohio, State v. Huertas (1990), 51 Ohio St.3d 22, cert. dismissed (1991), 498 U.S. 336, and State v. Hawkins (1993), 66 Ohio St.3d 339, certiorari denied, 510 U.S. 984, appellant's assignment of error is without merit. R.C. 2941.25 provides: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may convicted of only one. (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain - 10 - counts for all such offenses, and the defendant may be convicted of all of them. The purpose of this statute is to prohibit duplication of punishment where both crimes are motivated by the same purpose and where conviction of both would be dependent upon identical conduct and similar evidence. State v. Brown (1982), 7 Ohio App.3d 113, 116. Allied offenses of similar import are those offenses, elements of which correspond to such a degree, that the commission of one will result in the commission of the other. Newark v. Vazarani (1990), 48 Ohio St.3d 81. In Newark, the Ohio Supreme Court set forth a two-step test to determine whether two or more crimes are allied offenses of similar import. In the first step, the elements of the crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. Id. at 83. In the second step, if the court finds either that the crimes were committed separately or that there was a separate animus for each crime, defendant may be convicted of both offenses. See State v. Blankenship (1983), 38 Ohio St.3d 116, 117. Applying the foregoing test, this court has held that the elements of drug possession as set forth in R.C. 2925.11, and trafficking in drugs as set forth in R.C. 2925.03(A)(2), do not correspond to such a degree that the commission of one will - 11 - necessarily result in the commission of the other. State v. Daanish (January 6, 1994), Cuyahoga App. No. 64514, unreported; Sapp, supra. One may be in possession of drugs, but not in the act of trafficking. Id. Furthermore, this court has held that "* * * defendant may be convicted and sentenced for both possession and trafficking of the same physical quantity of drugs, even if there is no evidence demonstrating a completed drug sale, when there is sufficient evidence that defendant committed any of the elements of drug trafficking incident to an aborted sale." Powell, supra at 170. Accordingly, appellant's third assignment of error is without merit and is overruled. VI. In his fourth assignment of error, appellant contends that his trial counsel was ineffective in failing to object to the non- merger of the allied offenses and failing to object to the sentencing imposed by the trial court on Counts I and II. In State v. Harris (June 2, 1994), Cuyahoga App. No. 65653, unreported, at 23, this court, citing State v. Aziz (March 10, 1994), Cuyahoga App. No. 64581, unreported, at 9-10, provided the standard of review for an allegation of ineffective assistance of counsel: In order to overcome the general rule that a properly licensed attorney in Ohio is presumed competent, the complaining party must meet the following standard enunciated in State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, - 12 - "When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the Defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness." As to appellant's allegation that his defense counsel was ineffective in failing to object to the non-merger of the offenses and to the multiple punishments imposed by the trial court, we conclude that counsel did not violate a duty to his client in failing to object. Furthermore, there was no prejudice to the appellant because offenses of drug trafficking, R.C. 2925.03(A)(2) and drug abuse, R.C. 2925.11, are offenses of dissimilar import and should have been given separate sentences as imposed by the trial court. Accordingly, appellant's fourth assignment of error is not well taken. Judgment affirmed. - 13 - 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. JAMES D. SWEENEY, C.J. and ANN DYKE, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This 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(B) 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 of decision by the .