COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70645 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION JOSE NIEVAS : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 22, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-328,827 JUDGMENT : AFFIRMED IN PART; : REVERSED IN PART AND : REMANDED FOR RESENTENCING. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ANTHONY J. KELLON, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender ROBERT M. INGERSOLL, Assistant 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 CHARLES D. ABOOD, J.: This is an appeal from a judgment of the Cuyahoga County Court of Common Pleas, which found appellant Jose Nievas guilty of one count of trafficking in drugs, one count of permitting drug abuse, and one count of possessing criminal tools. The first two counts contained degree-enhancing specifications as to appellant's prior conviction of attempted drug trafficking. Appellant sets forth the following assignments of error: I. JOSE NIEVAS WAS DEPRIVED OF HIS CONSTI- TUTIONAL RIGHT TO A TRIAL BY JURY, WHEN THE TRIAL COURT TRIED AN ESSENTIAL ELE- MENT OF THE CRIME TO THE BENCH WITHOUT FIRST EXECUTING A VALID JURY WAIVER. II. JOSE NIEVAS HAS BEEN DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTIONS IN THE CASE AT BAR, AS SAID CONVICTIONS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE TO PROVE HIS GUILT BEYOND A REASONABLE DOUBT. III. JOSE NIEVAS WAS DEPRIVED OF HIS RIGHT NOT TO BE PLACED IN JEOPARDY TWO TIMES FOR THE SAME OFFENSE BY HIS CONVICTIONS FOR PERMITTING DRUG ABUSE IN A CAR AND POSSESSING CRIMINAL TOOLS, TO WIT: THE SAME CAR, WHEN THE TWO CRIMES ARE ALLIED OFFENSES OF SIMILAR IMPORT. IV. JOSE NIEVAS WAS DEPRIVED OF HIS CONSTI- TUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL COUNSEL'S FAILURE TO OBJECT TO HIS MULTIPLE SENTENCES FOR ALLIED OFFENSES OF SIMILAR IMPORT. - 3 - V. JOSE NIEVAS WAS DENIED HIS LIBERTY WITH- OUT DUE PROCESS OF LAW BY HIS CONVICTION FOR POSSESSING CRIMINAL TOOLS, A GENERAL CRIME, AS HIS CONDUCT IN THIS CASE WAS COVERED BY A SPECIFIC STATUTE, PERMITTING DRUG ABUSE. The facts relevant to this appeal are as follows. On May 3, 1 1995, appellant and his brother, Manuel Vega ("Vega"), were arrested after being observed consummating a controlled drug buy with a confidential informant working with the Cleveland Police Department. At the time of arrest, a pager and $117, $80 of which was four marked $20 bills given to the informant for the drug buy, were confiscated from Vega. A second pager was confiscated from appellant. Appellant and Vega were jointly indicted on one count of trafficking in drugs, in violation of R.C. 2925.03, one count of permitting drug abuse, in violation of R.C. 2925.13, and one count of possessing criminal tools (pagers, money and a 1975 Toyota), in violation of R.C. 2923.24. Counts one and two contained specifications as to appellant's prior conviction of attempted drug trafficking which enhanced the degree of appellant's drug trafficking charge from a third-degree felony to a second-degree felony and the permitting drug abuse charge from a first-degree misdemeanor to a fourth-degree felony. 1 Manuel Vega's birth name is Angel Nievas. Because the trial court records refer to Angel Nievas as Manuel Vega, we will continue the reference for sake of continuity. - 4 - Prior to the commencement of trial, counsel for appellant moved to bifurcate trial of the specifications so that appellant's prior conviction could be tried to the court rather than the jury. Arguing that evidence of appellant's prior conviction would be extremely prejudicial to appellant's case, appellant's defense counsel agreed to stipulate to the existence of this prior conviction. The trial court granted the motion over the state's objection. Trial commenced on March 19, 1996. Detective Bernard Norman of the Cleveland Police Department testified that he was with the informant when he paged a number assigned to Vega from a telephone booth located in the parking lot of a Convenient Food Mart near West 41st and Lorain Road. Det. Norman recorded the conversation between the informant and a person later identified as Vega wherein Vega agreed to sell the informant five bags of heroin for $80.00. Det. Norman left the parking lot shortly thereafter to view the anticipated transaction from a short distance away. Within moments, the informant was approached by a blue Toyota driven by appellant and carrying Vega as a passenger. From the passenger window, Vega and the informant conversed and parted shortly thereafter. Det. Norman reappeared and obtained the purchased narcotics from the informant and followed appellant's vehicle. Detective Charles Escalante, positioned closest to the transaction, forwarded the information to the surveillance team, who eventually stopped appellant's car and arrested the pair. - 5 - Prior to deliberation, the jury was instructed to consider the car as a criminal tool (count three) in appellant's case and the pager and money as criminal tools in Vega's case. With regard to the permitting drug abuse charge (count two), the jury was instructed to consider appellant as the operator of the car rather than Vega. For the drug trafficking charge (count one), the jury was given an aider and abettor instruction as to appellant. The jury ultimately returned a verdict of guilty on all counts for both appellant and Vega. Appellant was sentenced to two to fifteen years on count one and concurrent terms of one year each on counts two and three. I. In his first assignment of error, appellant contends that the specifications were degree-enhancing elements of drug trafficking and permitting drug abuse and, absent a valid jury waiver, could not be bifurcated and tried to the court alone. Because these elements were not proven, appellant maintains that he should have been sentenced on the least severe degree; namely, a third-degree felony on count one and a first-degree misdemeanor on count two. Where the existence of a prior conviction enhances the degree of a subsequent offense, it is an essential element of that offense that the state must prove beyond a reasonable doubt. See State v. Allen (1987), 29 Ohio St.3d 53, 54; State v. Ireson (1991), 72 Ohio App.3d 235, 239. Because of this burden, a criminal defendant is - 6 - not entitled to bifurcated proceedings nor is he entitled to waive a jury trial on that element alone. See State v. Schilling (1989), 65 Ohio App.3d 154, 159; State v. Young (Feb. 22, 1996), Cuyahoga App. Nos. 69010 and 69011, unreported; State v. Weaver (Aug. 10, 1995), Cuyahoga App. No. 67389, unreported. Consequently, while it may have been error for the trial court to bifurcate proof of appellant's prior conviction from the remainder of the elements of the charged offenses, it was appellant who requested the bifurcation in order to avoid the prejudicial effect inherent in having the jury exposed to appellant's past felony background. Appellant willingly stipulated the existence of the prior conviction for this very reason. "Under the invited-error doctrine, a party will not be permitted to take advantage of an error which he himself invited or induced the trial court to make." State ex rel. Bitter v. Missig (1995), 72 Ohio St.3d 249, 254; State v. Hayes (Sep. 5, 1996), Cuyahoga App. No. 70052, unreported; but, see, State v. Mitchell (Dec. 5, 1996), Cuyahoga App. Nos. 67490 & 67491, unreported. Upon consideration of the record of proceedings in the trial court and the law as set forth above, this court finds that appellant invited or induced the error of which he now complains. Accordingly, appellant's first assignment of error is not well- taken. - 7 - II. In his second assignment of error, appellant contends that there was insufficient evidence to support his convictions. Spe- cifically, he contends that there was no direct evidence of his involvement in the drug transaction and that his mere presence alone is insufficient to convict him. In challenging the legal sufficiency of the state's evidence, "the relevant question 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." State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. The weight of the evidence and the credibility of the witnesses are primarily a matter for the trier of fact, and a reviewing court will not reverse a verdict where there is substantial and credible evidence upon which the trier of fact could reasonably conclude that all elements of the offense have been proven beyond a reasonable doubt. State v. DeHaas (1967), 10 Ohio St.2d 230. In this case, appellant claims that he innocently agreed to drive Vega to meet the informant but was not aware for what pur- pose. In this regard, he claims that his "mere presence" is in- sufficient to charge him with aiding and abetting Vega. The state, on the other hand, contends that appellant aided and abetted Vega in consummating the drug transaction. - 8 - It is true that a person's mere association with a principal offender is not enough to sustain a conviction based on aiding and abetting. State v. Sims (1983), 10 Ohio App.3d 56, 58. To the contrary, there must be some level of active participation by way of providing assistance or encouragement. Id. "Mere approval or acquiescence, without expressed concurrence or the doing of something to contribute to an unlawful act, is not an aiding or abetting of the act." Id. at 59. Criminal intent, however, can be inferred from the presence, companionship and conduct of a criminal defendant both before and after the offense is committed, State v. Pruett (1971), 28 Ohio App.2d 29, 34, and may be proven by either direct or circumstantial evidence. See State v. Mootispaw (1996), 110 Ohio App.3d 566, 570; State v. Cartellone (1981), 3 Ohio App.3d 145, 150. Upon consideration of the entire record of the proceedings in the trial court and the evidence as summarized above, this court finds that there was sufficient evidence presented upon which a rational trier of fact could find beyond a reasonable doubt that the appellant aided and abetted Vega in effecting the drug deal. Accordingly, appellant's second assignment of error is not well taken. III. In his third assignment of error, appellant contends that counts two and three should have been merged because permitting - 9 - drug abuse in a car and possessing a criminal tool, the same car, are allied offenses of similar import. The state maintains that this issue is moot because the sentences for both counts were to run concurrently. R.C. 2941.25(A) governs multiple counts and provides: Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment *** may contain counts for all such offenses, but the defendant may be convicted of only one. In this case, appellant was charged with violating R.C. 2925.13, which provides: No person who is the owner, operator, or per- son in charge of a *** vehicle as defined in division (A) of section 4501.01 of the Revised Code, shall knowingly permit the vehicle to be used for the commission of a felony drug abuse offense. Appellant was also charged with violating R.C. 2923.24, which provides: No person shall possess or have under his control any *** device *** with purpose to use it criminally. In determining whether offenses are allied and of similar import, a two-part test is employed. Newark v. Vazirani (1990), 48 Ohio St.3d 81, 83; State v. Gest (1995), 108 Ohio App.3d 248, 262. First, the elements of the two offenses are compared. If the elements correspond to such a degree that commission of one offense results in the commission of the other, the offenses are allied and of similar import. Once it is determined that the offenses are allied, the trial court must then ascertain whether the offenses - 10 - were committed separately or with a separate animus in order to sustain a conviction for both offenses. Id. This court has previously determined that where the criminal tool is a vehicle, the offenses of permitting drug abuse with a vehicle under R.C. 2925.13 and possessing criminal tools under R.C. 2923.24 are allied offenses of similar import because the elements of each offense correspond and the commission of one results in the commission of the other. See State v. Castellanos (Sep. 14, 1995), Cuyahoga App. No. 67304, unreported; State v. Mallett (Mar. 3, 1994), Cuyahoga App. No. 64752, unreported; State v. McNamee (Dec. 7, 1989), Cuyahoga App. Nos. 56294 and 56366, unreported. Because the offenses in this case were part of the same drug transaction, they were not committed separately or with a separate animus. Having satisfied the two-tiered test set forth in Vazirani, supra, 2 appellant cannot be convicted of both offenses under R.C. 2941.25. 2 We are mindful that this court has previously determined that these two offenses are not allied offenses of similar import because the element of "ownership," which is present in R.C. 2925.13, is missing from R.C. 2923.24 and, therefore, the elements were found not to correspond. See State v. Pall (Sep. 12, 1991), Cuyahoga App. No. 59232, unreported; State v. Mateo (Aug. 17, 1989), Cuyahoga App. No. 55833, unreported, reversed in part on other grounds (1991), 57 Ohio St.3d 50. However, the elements of an offense should not be viewed abstractly but should be viewed with reference to the facts of the particular case. Dayton v. McLaughlin (1988), 50 Ohio App.3d 69, 74. R.C. 2925.13 does not require ownership but, written in the disjunctive, is one form of possession permitted. Consequently, the elements of the R.C. 2923.24 offense are subsumed within the elements of the R.C. 2925.13 offense for purposes of analyzing whether the statutes are allied and of similar import. - 11 - The state argues that because the multiple sentences run concurrently, appellant will suffer no prejudice and this issue is therefore moot. This argument is without merit. While appel- lant's jail term is not enhanced by the error, the potential for unpredictable adverse consequences exists. See State v. Law (Apr. 4, 1991), Cuyahoga App. No. 58326, unreported at 3. Upon consideration of the record of proceedings in the trial court and the law as set forth above, this court finds that counts two and three should have been merged. Accordingly, appellant's third assignment of error is well taken. IV. Due to our disposition of appellant's third assignment of error, appellant's fourth and fifth assignments of error are moot and need not be considered by this court. See App.R. 12(A)(1)(c). V. Upon consideration whereof, this court finds that substantial justice has not been done the party complaining, and this case is affirmed as to appellant's conviction for trafficking in drugs; for the reasons stated above, however, the sentences imposed by the Cuyahoga County Common Pleas Court as a result of the multiple convictions for permitting drug abuse and possession of criminal tools are reversed, and this case is remanded to the trial court for resentencing to reflect the merger of these two offenses. - 12 - This cause is affirmed in part, reversed in part and remanded for resentencing consistent with the opinion herein. - 13 - It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed in part any bail pending appeal is terminated. Case remanded to the trial court for resentencing. The Court finds there were reasonable grounds for this appeal. It is ordered, therefore, that said appellant and said appel- lee equally share the costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA BLACKMON, P.J. and DIANE KARPINSKI, J. CONCUR JUDGE CHARLES D. ABOOD* *SITTING BY ASSIGNMENT: Charles D. Abood, retired judge of the Sixth District, sitting by assignment of the Supreme Court of Ohio. 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 of decision by the .