COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70687 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : MICHAEL CRAWLEY : : Defendant-Appellant : DATE OF ANNOUNCEMENT MAY 8, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-332585 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. VALERIE R. ARBIE, ESQ. Cuyahoga County Prosecutor Assistant Public Defender LOUIS BRODNIK, ESQ. 100 Lakeside Place Assistant County Prosecutor 1200 West Third Street, NW 8th Floor Justice Center Cleveland, Ohio 44113-1569 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, P.J.: Defendant-appellant Michael Crawley appeals his conviction and sentence for drug abuse. Crawley assigns the following three errors for our review: I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S CRIM.R. 29 MOTIONS FOR ACQUITTAL AND DENIED HIM DUE PROCESS OF LAW, WHEN THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN A CONVICTION OF DRUG ABUSE WHERE THE EVIDENCE SHOWED THAT HE POSSESSED A CRUMB OF COCAINE WHICH HAD BEEN EMBEDDED IN THE SEAM OF HIS POCKET. II. MR. CRAWLEY'S RIGHT TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED WHEN THE TRIAL COURT PERMITTED THE PROSECUTION TO QUESTION A DEFENSE WITNESS ABOUT THE DEFENDANT'S PRIOR DRUG TRAFFICKING CONVICTION. III. MICHAEL CRAWLEY WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATED CONSTITUTION WHEN HIS TRIAL COUNSEL FAILED TO FILE AN AFFIDAVIT OF INDIGENCE REGARDING HIS ABILITY TO PAY THE MANDATORY FINE OF $2500. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On August 17, 1995, Cleveland police officers Guy Sako and Stephen Loomis were conducting surveillance on E. 149th street in Cleveland. The officers positioned themselves in the upstairs window of an abandoned house. Using binoculars, they saw Michael Crawley, defendant-appellant, standing on the sidewalk below them. -3- Crawley was wearing a multi-colored Nike shirt, denim shorts, a gold hoop earring, and a gold neckchain. A white van approached and stopped in the street directly across the street from where Crawley was standing. Crawley crossed the street and approached the driver's side of the van. The officers observed him talking to the driver. Crawley then pulled a brown piece of paper from the front pocket of his denim shorts and unfolded it to show the driver. In the brown paper, the officers observed a white substance they believed was crack cocaine. Crawley removed some of the white substance from the paper and handed it to the driver. The driver then handed Crawley a piece of paper currency. Thereafter, the van pulled away. Crawley continued across the street and stopped on the sidewalk in front of 3443 E. 149th. When he reached the sidewalk, he was immediately met by a male later identified as Thomas Sanders. Crawley opened the brown piece of paper and showed its contents to Sanders. Again the officers saw a white substance they believed was cocaine. Crawley gave Sanders some of the white substance in exchange for paper currency. Thereafter, a police car drove past Crawley and Sanders and stopped a car about five houses down from where the men were standing. Upon seeing the police car, Crawley and Sanders walked away in different directions. Officers Sako and Loomis left the abandoned house via the rear door in order to avoid being seen. Once back at their patrol car, Sako and Loomis pursued Sanders. They encountered him on nearby E. 146th street. When they -4- approached him, Sanders dropped one rock of cocaine onto the ground. The officers retrieved the cocaine and arrested Sanders. The officers then pursued Crawley. They found him standing in the apron of a driveway at 3393 E. 149th, approximately ten houses north of the spot where police first observed him. Crawley was wearing the Nike shirt, denim shorts, gold hoop earring, and gold neckchain the officers noticed before. As the officers began to exit their patrol car, Crawley took a few steps backward, then started to run away. He was quickly tackled by Officer Loomis. Crawley briefly struggled with Loomis but succumbed after being threatened with pepper spray. Several of Crawley's friends and family gathered and questioned officers about why they were arresting Crawley. Crawley was arrested, patted down, and placed in the police car. As Crawley was being taken to the police station, he was advised of his constitutional rights. Once at the station, police executed a full search of Crawley. As part of the search, Crawley's pockets were turned inside out. In a seam in the corner of Crawley's right pants pocket, police found a very small piece of crack cocaine. Police also recovered a pager, $70.00 in cash, a gold earring, and a gold neckchain. Crawley was indicted on a charge of drug abuse. The indictment contained a furthermore clause that Crawley had been convicted of drug trafficking on March 23, 1993. Crawley filed a motion to suppress the evidence seized by police. After a hearing, the trial court denied the motion and the case proceeded to trial. -5- The jury found Crawley guilty of drug abuse and made a separate finding of guilt as to the furthermore clause. Crawley was sentenced to two years in prison and a mandatory fine of $2500. This appeal followed. In his first assignment of error, Crawley argues the trial court erred in denying his Crim.R. 29 motion for acquittal. A motion for acquittal must be denied if the evidence is such that reasonable minds can reach different conclusions as to whether each element of the crime has been proven beyond reasonable doubt. State v. Blankenship (1995), 102 Ohio App.3d 534, 551; State v. Bridgeman (1978), 55 Ohio St.2d 261, at syllabus. In order to convict Crawley of drug abuse under R.C. 2925.11, the state had to prove that Crawley knowingly obtained, possessed, or used a controlled substance. Crawley argues a failure of proof as to the element of knowledge. He concedes that no minimum amount of cocaine is necessary to warrant a valid drug abuse conviction, but argues there was no evidence that Crawley was aware of the presence of the crumb in his pocket. "A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." R.C. 2901.22. In this case, the state presented evidence that Crawley participated in two drug transactions. Through binoculars, police officers observed Crawley remove rocks of crack cocaine from the -6- right front pocket of his pants. The state also presented evidence that crack cocaine had a tendency to break apart if not carried in a hard container. Though small, the crumb of cocaine seized from Crawley was clearly visible to the naked eye and was found in the same pocket from which two police officers saw Crawley remove at least two pieces of crack cocaine. Construing this evidence most strongly in favor of the state, as we are required to do when evaluating a Crim.R. 29 motion for acquittal, we conclude reasonable minds could differ as to whether Crawley knowingly possessed the crumb of cocaine. Crawley's first assignment of error is overruled. In his second assignment of error, Crawley argues the trial court erred by permitting the state to cross examine a defense witness about Crawley's prior drug trafficking conviction. Before trial, the parties stipulated that Crawley had previously been convicted of drug trafficking and agreed that the offense would not be submitted to the jury unless and until Crawley was convicted of drug abuse. Crawley presented testimony from Donell Johnson, his next- door neighbor. After asking Johnson how long he had known Crawley, defense counsel, Richard Drucker, asked Johnson "Have you ever seen him on East 149th Street selling any sort of drugs?" Johnson replied "No." Thereafter, the court called a sidebar conference. COURT: Is this a character witness? DRUCKER: No. -7- COURT: Well, you just asked him if he's ever sold any drugs. We know in this case that -- just a minute. We know in this case that there is a furthermore clause and the defendant is trafficking. Is he going to be allowed -- BRODNIK: I think the door's been opened. COURT: I do, too. DRUCKER: I mean I asked him -- COURT: I don't know how you can cure this. I mean you've just -- this guy is a character witness, he's never seen him selling drugs. Let's move on. (Tr. 369-370.) Later, after the end of his direct examination of Johnson, defense counsel argued to the trial court that he meant to ask Johnson if he saw Crawley selling drugs on E.149th on the evening of his arrest. (Tr. 377.) The trial court noted that Johnson said he had never seen Crawley selling drugs and ruled that, because the defense put in the inference that Crawley had a reputation for not selling drugs, the prosecution was allowed to ask Johnson if he knew Crawley had a record. The prosecution then asked Johnson "[W]ould it surprise you to know that in fact the defendant has been convicted of selling drugs?" Johnson replied, "Yes, that would surprise me." Thereafter, the court gave the following instruction to the jury: Ladies and gentlemen, this line of cross- examination is to be considered by you, if at all, not to establish the truth of the question asked by the State of Ohio, but only to test the credibility of this witness and for you to -8- ascertain what weight or value you should give to the testimony of this particular witness. (Tr. 384.) We addressed this issue in State v. Collins (1994), 97 Ohio App.3d 438. In Collins, defense counsel asked defendant's grandmother if her grandson was a troublemaker. Collins' grandmother replied, "No." On cross examination, the state asked Collins' grandmother if she knew about Collins' prior criminal activity. At the end of the grandmother's testimony, the trial court instructed the jury that evidence concerning Collins' prior criminal activity was to be considered only for the purpose of evaluating his grandmother's credibility and the weight to be given to her testimony. This court found the defense had "opened the door" to questions about Collins' prior criminal activity by its witness testifying that Collins was not a troublemaker. [T]he prosecution subsequently questioned the witness to determine whether the witness was aware of the defendant's prior arrests and whether knowledge of these prior arrests would change the witness's opinion concerning defendant's character. The record demonstrates that the trial court properly instructed the jury on two occasions concerning the limited use of this testimony and the jury is presumed to [follow] such instructions. Collins at 450. In this case, defense counsel opened the door to questions about Collins' prior criminal activity by asking Donell Johnson if he had ever seen Crawley selling drugs on E.149th Street. His use of the word "ever" suggested not a specific inquiry about whether Crawley sold drugs in the area on the night in question but rather -9- a general inquiry as to whether Crawley was known to have sold drugs in the area. The question placed Crawley's reputation in issue. Consequently, the prosecution was entitled to ask Johnson if he would be surprised to know that Crawley had previously been convicted of drug trafficking. See Evid.R. 405(A) [if reputation evidence is presented, the witness may be cross-examined about relevant specific instances of conduct]. Crawley's second assignment of error is overruled. In his third assignment of error, Crawley argues he was denied the effective assistance of counsel. Specifically, he argues trial counsel acted unreasonably by failing to file an affidavit of indigency with respect to his ability to pay the mandatory $2500 fine. The record reveals the following exchange: COURT: I believe under Revised Code 2925.11, E1, if this is a felony of the third degree, mandatory fine is one of $2500. Mr. Drucker was privately retained by you, is that correct? CRAWLEY: Yes, he was. By my family, not by me personally. COURT: By your family and not by you. Well, the Court will fine you $2500 which is a mandatory fine, and the Court will consider suspending that if you have submitted an affidavit of indigency as to your assets. What are your assets? CRAWLEY: A car, that's it. COURT: What year is the car? CRAWLEY: A 1983 Malibu. COURT: Okay. Well, you could consult with your attorney. If he submits an -10- affidavit of indigency the Court will suspend the imposition of the fine. (Tr. 620-621.) Crawley cites State v. Joy (Nov. 23, 1993), Lawrence App. Nos. 92 CA 24; 92 CA 30, unreported and argues the failure to file an affidavit of indigency is a breach of counsel's duty. However, an error on the part of trial counsel does not constitute ineffective assistance of counsel unless the error is shown to have prejudiced the defendant. See State v. Fields (1995), 102 Ohio App.3d 284, 288. A finding of prejudice requires a showing that, but for the errors, the outcome of the proceeding would probably have been different. Id. In Joy, the court stated a determination of whether the defendant was prejudiced by trial counsel's failure to file an affidavit of indigency could only be made by first determining if he was indigent. Crawley argues the trial court indicated he would be found indigent. However, the court said only that it would suspend the fine if Crawley submitted an affidavit of indigency. Crawley's unsworn statement that his only asset was a 1983 Malibu is not sufficient evidence from which to determine whether Crawley was indigent. Accordingly, Crawley has not met his burden of showing he was prejudiced by trial counsel's error. We overrule Crawley's third assignment of error. Judgment affirmed. -11- 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. ABOOD,* J., CONCURS; KARPINSKI, J., CONCURS (IN JUDGMENT ONLY) PATRICIA ANN BLACKMON PRESIDING JUDGE (*SITTING BY ASSIGNMENT: JUDGE CHARLES D. ABOOD, RETIRED, OF THE 6TH DISTRICT COURT OF APPEALS) 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 .