COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72113 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : -VS- : AND : RONALD BURRELL : OPINION : Defendant-Appellant : Date of Announcement of Decision: APRIL 16, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-340882 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES JAMES R. WILLIS, ESQ. Cuyahoga County Prosecutor Courthouse Square Bldg. ELEANORE E. HILOW, Assistant Suite 595 Prosecuting Attorney 310 Lakeside Ave., N.W. 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- JAMES M. PORTER, P.J.: Defendant-appellant Ronald Burrell appeals from his conviction following a jury trial finding him guilty of trafficking in drugs (R.C. 2925.03) with a firearm specification. Defendant asserts on appeal that he was denied effective assistance of counsel at his suppression hearing; that the court's denial of the motion to suppress was not supported by the evidence; that since the jury found defendant not guilty of carrying a concealed weapon he could not be convicted of the firearm specification which also was not supported by evidence beyond a reasonable doubt. We find no reversible error and affirm for the reasons hereinafter stated. This case arose out of an arrest of defendant on October 6, 1995 in the area of East 140th Street and Othello Avenue, where officers of the Cleveland Police Department's Sixth District Strike Force had set up surveillance in response to complaints of drug sales in that area. The officers testified as follows at the suppression hearing. Strike Force Detectives Smith and Hall were in their surveillance positions when they observed a white van heading westbound on the north marginal go through the flashing red light at the East 140th and McElhatten intersection without stopping and pull into a driveway. After observing this traffic violation, the officers pulled up behind the van with their strobe light activated. Defendant exited his vehicle and asked the detectives what was wrong. Det. Smith asked defendant for his driver's license. As defendant reached into his pocket and removed his license, a small clear plastic bag with what appeared to be -3- crack cocaine was also removed. Defendant attempted to shove it back in his pocket, but Det. Hall grabbed his wrist and prevented it from being hidden. Three more bags with a large amount of crack cocaine (72 rocks in all) were found when the officers patted the defendant down for their own safety. Defendant was placed under arrest and advised of his rights. Defendant advised the detectives that he had a loaded weapon under the driver's seat of the van. The detectives found a loaded nine millimeter gun under the seat as defendant had indicated. According to the officers, as defendant was being taken to the police car, he stated: This couldn't last forever; it had to end sooner or later. Defendant was transported to the police station and booked for violation of the State's drug laws and on weapons charges. Defendant's witnesses at the suppression hearing testified to a great deal of police activity at the scene, suggesting that the police were stopping cars and searching them at random as part of a generic drug sweep. The inference was that defendant was merely caught up in this action. Another witness and defendant himself testified that he did not go through the red traffic light. The trial court overruled the motion to suppress without making any specific findings. Defense counsel did not move for such findings. At the jury trial, the witnesses testified in similar fashion to the suppression hearing and the jury returned a guilty verdict on the drug trafficking charge with a firearm specification. The -4- jury found defendant not guilty of carrying a concealed weapon. This timely appeal ensued. We will address defendant's assignments of error in the order asserted and together where it is appropriate for discussion. I. THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO INSIST (DESPITE THE MANDATORY LANGUAGE OF RULE 12 [E], OHIO RULES OF CRIMINAL PROCEDURE) THAT THE TRIAL JUDGE STATE HER ESSENTIAL FINDINGS OF FACT ON THE RECORD. II. THE COURT ERRED WHEN IT DENIED THE MOTION TO SUPPRESS. Defendant claims that he was deprived of effective assistance of counsel because counsel did not ask for findings of fact on the suppression hearing pursuant to Crim.R. 12(E) and the court's ruling denying the motion was contrary to the evidence presented. The standards for ineffective assistance of counsel were set forth by this Court as follows in Lakewood v. Town (1995), 106 Ohio App.3d 521, 525-26: The standard of review for ineffective assistance of counsel requires a two-part test and is set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See, also, State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. [T]he defendant must show that counsel's representation fell below an objective standard of reasonableness. Strickland at 687-688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. The defendant must also prove that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. -5- Defendant contends that his counsel's failure to seek findings of fact materially prejudiced his case. In the disposition of this issue, we find instructive the Supreme Court's decision in State v. Brown (1992), 64 Ohio St.3d 476, which held as stated in the syllabus: When a defendant makes no request to the trial court to state findings of fact in support of an order overruling a motion to dismiss on speedy trial grounds, and the trial court does not state its findings of fact, an appellate court errs in reversing a conviction on the ground that the defendant was denied a speedy trial if there is sufficient evidence demonstrating that the trial court's decision was legally justified and supported by the record. The Supreme Court addressed the issue of whether Crim.R. 12(E) can be waived and the effect it has on the case as follows: Brown argues that in the absence of an express finding of fact that a parole holder had been issued, no basis exists for the trial court's denial of his motion to dismiss. Crim.R. 12(E) provides, in pertinent part, that [w]here factual issues are involved in determining a motion, the court shall state its essential findings on the record. A trial court must, upon the defendant's request, state essential findings of fact in support of its denial of a motion to discharge for failure to comply with the speedy trial provisions of R.C. 2945.71. Bryan v. Knapp (1986), 21 Ohio St.3d 64, 65, 21 OBR 363, 364, 488 N.E.2d 142, 143. But for a court to have a duty to issue findings of fact, there must be a request from the defendant. No request for such findings was made by Brown's trial counsel. In State v. Benner (1988), 40 Ohio St.3d 301, 317-318, 533 N.E.2d 701, 718, this court stated the following: In order to invoke the rule [Crim.R. 12(E)], the defendant must request that the court state its essential findings of fact in -6- support of its denial of a motion. See Bryan v. Knapp (1986), 21 Ohio St.3d 64, 21 OBR 363, 488 N.E.2d 142. Therefore, a trial court's failure to place of record the findings of fact essential to its disposition of a motion will not provide a basis for reversal on appeal in the absence of a timely request for such findings. Benner, supra; Knapp, supra. In this case, it would have been helpful if the trial court had filed findings of fact and a judgment entry memorializing its ruling and the grounds therefor, or if a copy of the parole holder had been placed in the record. However, there was other sufficient evidence of the parole holder for the trial court to deny Brown's motion to dismiss. The transcripts of the hearing on the motion to dismiss and the in-chambers conference on the day of trial provide sufficient evidence of a parole holder. Therefore, Brown was not entitled to the triple-count provision of R.C. 2945.71 as he was not being held solely on the pending charge and his trial was well within the period required by R.C. 2945.71(C). [Footnote omitted.] Accordingly, we hold that when a defendant makes no request to the trial court to state findings of fact in support of an order overruling a motion to dismiss on speedy trial grounds, and the trial court does not state its findings of fact, an appellate court errs in reversing a conviction on the ground that the defendant was denied a speedy trial if there is sufficient evidence demonstrating that the trial court's decision was legally justified and supported by the record. State v. Brown (1992), 64 Ohio St.3d 476 at 481-82. The thrust of the Browndecision is that there is no prejudice to the defendant from the failure to seek findings under Crim.R. 12(E) if there is sufficient evidence in the record, including the transcript, to support the trial court's ruling. -7- This Court has come to the same conclusion in Parma v. Reschke (Feb. 14, 1991), Cuyahoga App. No. 58015, unreported at 4-5: The city argues that the trial court erred by failing to state its essential factual findings on the record, after the city had requested findings pursuant to Crim.R. 12(E). Crim.R. 12(E) provides in part that [w]here factual issues are involved in determining a motion, the court shall state its essential findings on the record. Although it was error for the court not to specifically comply with the city's request for findings of fact on the court's suppression ruling, this error was not prejudicial. When a trial court's findings of fact are inadequate and the record provides an appellate court with a sufficient basis to review appellant's assignments of error, the appellate court need not remand for the entry of findings of fact. State v. Almalik (1987), 41 Ohio App.3d 101; Geraci v. Maddalena (Oct. 25, 1984), Cuyahoga App. No. 47964, unreported. The transcript of the motion to suppress hearing provides us with a sufficient basis to review appellant's assignments of error and, in particular, the correctness of the court's suppression ruling. Therefore, the city was not prejudiced by the trial court's failure to issue findings of fact and we are able to address appellant's claim on its merits. We are obliged to give broad deference to the trial court's rulings on suppression matters. The scope of our review on a motion to suppress was set forth by this Court in State v. Curry (1994), 95 Ohio App.3d 93, 96: In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility. State v. Clay(1973), 34 Ohio St.2d 250, 63 O.O.2d 391, 298 N.E.2d 137. A reviewing court is bound to accept those findings of fact if supported by competent, credible evidence. See State v. -8- Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54. However, without deference to the trial court's conclusion, it must be determined independentlywhether, as a matter of law, the facts meet the appropriate legal standard. State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906, 908. Reading Brownand Curryin pari materia, we find that there is no prejudice to defendant from his counsel's failure to ask for Crim.R. 12(E) findings if the record supports the trial court's conclusion that defendant failed to establish good grounds for his suppression motion. In the instant case, although there is conflicting evidence, the testimony of Det. Gerald Hall supports the trial court's conclusion. Det. Hall testified that he observed defendant run a blinking red light at East 140th and McElhattan; that he and Det. Smith went to the driveway defendant had pulled into; that the officers and defendant walked towards each other after they exited their vehicles; that the detectives asked defendant for his driver's license, which defendant removed from his pocket; that as defendant pulled his license from his pocket, a plastic bag containing suspected crack cocaine appeared; that he plainly saw the bag as defendant attempted to put it back in his pocket; and that he grabbed defendant's wrist, looked at the bag, handcuffed defendant and placed him under arrest. Det. Hall then went on to testify that the defendant stated at the time of his arrest that this couldn't last forever; it had to end sooner or later. Defendant admitted he had a weapon in his van, a nine millimeter, semi-automatic pistol, loaded, with fifteen (15) rounds, which the -9- officers found and confiscated. Det. Hall further testified that when they patted the defendant after arresting him, they found three more bags of crack cocaine on his person. Det. Melvin Smith's testimony was substantially corroborated by that of Det. Hall. Clearly, this evidence from the police officers, if believed, was sufficient to support the trial court's conclusion that the officers had made a legitimate traffic stop and, in the course of seeking identification, came across the illegal drugs leading to discovery of the weapon. Accordingly, defendant was not prejudiced from his counsel's failure to ask for Crim.R. 12(E) findings as the trial court's conclusion that defendant failed to establish good grounds for his suppression motion is sufficiently supported by this evidence. We find no merit to Assignments of Error I and II. They are overruled. III. GIVEN THE FACT THAT THE JURY CREDITED THE APPELLANT'S AFFIRMATIVE DEFENSE TO THE CHARGE OF CARRYING A CONCEALED WEAPON (R.C. OF OHIO, 2923.12[A]) WHICH DEFENSE WAS PROVIDED BY R.C. OF OHIO, 2923.12(C)(2), IT FOLLOWS THAT THE VERDICT, FINDING THE APPELLANT GUILTY OF THE GUN SPECIFICATION (CHARGED IN THE INDICTMENT AS AN APPENDAGE TO THE DRUG TRAFFICKING CHARGE [TRANSCRIPT (VERDICT), PP. 434-435], IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS CONTRARY TO LAW. IV. THE VERDICT FINDING THE APPELLANT GUILTY OF THE GUN SPECIFICATION, AS CHARGED IN COUNT TWO OF THE INDICTMENT, IS NOT SUPPORTED BY EVIDENCE SUFFICIENT TO SUSTAIN A FINDING OF GUILT BEYOND A REASONABLE DOUBT. -10- We will address these assignments of error together as they relate to the same issues and facts. Defendant claims that the jury's verdicts are inconsistent in that the jury could not find him guilty as to the gun specification while finding him not guilty of carrying a concealed weapon. Therefore, the finding on the gun specification is against the manifest weight of the evidence. The jury's verdict was, in fact, in conformance with the evidence presented and the laws of the State of Ohio. All requisite elements of the offense must be satisfied in order to support a guilty verdict. In the instant case, the jury, upon reviewing the evidence and hearing the witnesses determined that defendant was guilty of trafficking in drugs and had a firearm in his possession while committing that offense. More specifically, the jury found that he possessed 72 rocks of crack cocaine and a firearm. The scope of review as to the sufficiency and weight of the evidence was recently set forth as follows in State v. Smith (1997), 80 Ohio St.3d 89, 113: Sufficiency of the evidence is the legal standard applied to determine whether the case may go to the jury or whether the evidence is legally sufficient as a matter of law to support the jury verdict, State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541, 546, whereas the [w]eight of the evidence concerns `the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.' (Emphasis sic.) Id. at 387, 678 N.E.2d at 546. In reviewing the record for sufficiency, [t]he relevant inquiry is whether, after viewing the evidence in a light most favorable -11- 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, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Defendant was found not guilty of carrying a concealed weapon but found guilty of drug trafficking with a firearm specification. Defendant argues that these verdicts are inconsistent because the jury found that the elements of a violation of carrying a concealed weapon were not satisfied and therefore the conviction of drug trafficking with a firearm specification is against the manifest weight of the evidence. This argument is without merit. The additional sentence on a firearm specification is imposed pursuant to R.C. 2929.71. Under this section, the specification is properly added for a conviction on any felony other than a violation of section 2923.12 of the Revised Code [Carrying a Concealed Weapon], where a defendant has a firearm on or about his person or under his control while committing the felony. On the other hand, the requisite elements for a charge of carrying a concealed weapon under R.C. 2923.12 are [n]o person shall knowingly carry or have, concealed on his person or concealed ready at hand, any deadly weapon or dangerous ordnance. Defendant contends that the firearm in question was some distance from him when he was arrested. However, geographic location of the firearm at the time of arrest is irrelevant. The relevant inquiry is whether the firearm was under his control while he committed the felony. The police testified that when they -12- arrived at the location where defendant stopped his van, he was stepping from the vehicle. He was asked immediately for his driver's license by the officers. At that time, the drugs were viewed in his hand and he was placed under arrest and advised of his rights. Defendant then advised the officers that he had a loaded pistol under his seat which the officers found and secured. R.C. 2929.71 specifically states that a firearm specification is properly added for a conviction of any felony other than carrying a concealed weapon. Under this section, any person with a firearm on or about his person or under his control while committing any felony except carrying a concealed weapon is subject to a firearm specification. The jury's verdict is supported by sufficient evidence and we find no inconsistency in the verdict. A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 58 Ohio St.2d 169, paragraph one of the syllabus. The weight to be given evidence and the credibility of witnesses are primarily for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St.2d 230. Defendant's speculation as to the inconsistency of the jury's reasoning for their verdict is not persuasive. The Ohio Supreme Court expressed the principles applicable to inconsistent verdicts in criminal cases in State v. Adams (1978), 53 Ohio St.2d 223, 227- 28, as follows: -13- Appellant's fourth contention is that the jury's verdicts of not guilty on the count of aggravated robbery and guilty on the count of aggravated murder, with the specification of aggravating circumstances, are inconsistent. It is appellant's position that, if the jury determined that appellant was not guilty of aggravated robbery, it is totally illogical to find him guilty of committing a murder in the commission of the same aggravated robbery of which he was acquitted. The general rule as to inconsistency in a verdict as between different counts of an indictment is expressed in the annotation in 18 A.L.R.3d 259, at page 274, where it is stated that *** consistency between the verdicts on the several counts of an indictment *** is unnecessary where defendant is convicted on one or some counts but acquitted on others, and the conviction will generally be upheld irrespective of its rational incompatibility with the acquittal. The rule in Ohio, as expressed in Griffin v. State, 120 Ohio St. 62, 165 N.E. 566 (1929); and State v. McNico, 143 Ohio St. 39, 27 O.O. 569, 53 N.E.2d 808 (1944), is stated in paragraph four of the syllabus in Browning, as follows: The several counts of an indictment containing more than one count are not interdependent. A verdict responding to a designated count will be construed in the light of the count designated, and no other. An inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count. Appellant's argument is thus not well taken. This Court even more recently relied on United States Supreme Court precedent to reach the same conclusion in State v. Beehive Ltd. Partnership (1993), 89 Ohio App.3d 718, 728-29: Assume arguendo the verdicts of guilt against Beehive and acquitting the two -14- individual defendants are inconsistent, this does not establish the evidence was insufficient to sustain Beehive's jury convictions. The fact that a jury returns inconsistent verdicts on several charges submitted to it does not demonstrate the evidence was insufficient as a matter of law to support the conviction or entitle the convicted defendant to be discharged or to obtain a new trial. See United States v. Powell (1984), 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461, and State v. Woodson, supra. The Supreme Court in Powell recognized this principle in the analogous context of inconsistent verdicts against a single individual on predicate and compound offenses, stating as follows: *** The rule that the defendant may not upset such a verdict embodies a prudent acknowledgment of a number of factors. First, *** inconsistent verdicts - even verdicts that acquit on a predicate offense while convicting on a compound offense - should not necessarily be interpreted as a windfall to the Government at the defendant's expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusions on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense. But in such situations the Government has no recourse if it wishes to correct the jury's error; the Government is precluded from appealing ***. Inconsistent verdicts therefore present a situation where `error' in the sense that the jury has not followed the court's instructions,most certainly has occurred, but it is unclear whose ox has been gored. Given this uncertainty, and the fact the Government is precluded from challenging the acquittal, it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course. (Emphasis added.) United States v. Powell, supra, 469 U.S. at 65, 105 S.Ct. at 476-477, 83 L.Ed.2d at 468-469. The Supreme Court concluded that appellate courts are bound to review such -15- convictions, notwithstanding any inconsistency in the jury verdict, under traditional sufficiency of the evidence standards, stating as follows: *** [A] criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. This review should not be confused with problems caused by inconsistent verdicts. Sufficiency-of-the evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt. Id. at 67, 105 S.Ct. at 478, 83 L.Ed.2d at 470. Under the circumstances, Beehive has failed to demonstrate the trial court erred by refusing to enter a judgment of acquittal or granting a new trial on its three jury convictions in the case sub judice. Accordingly, defendant's first assignment of error is overruled. Therefore, the only relevant inquiry to be made by this Court is whether there was substantial evidence presented upon which the jury could have reasonably concluded that all the elements of defendant's conviction were proven beyond a reasonable doubt. The evidence presented supports the jury's finding of a firearm specification. Specifically, that defendant possessed a firearm on or about his person or under his control while committing the felony. The evidence established that defendant was the driver and sole occupant of the van. He possessed the crack cocaine on his person, a felony under R.C. 2925.11, as he was driving the van before pulling into the driveway. The gun was loaded and readily accessible to defendant while he was driving. A review of the record reveals that defendant's conviction was supported by -16- substantial evidence and that said evidence established all requisite elements of the firearm specification beyond a reasonable doubt and the verdict was not against the manifest weight of the evidence. The jury reasonably concluded that the appellant was guilty of drug trafficking with a firearm specification and we will not disturb their verdict. Assignments of Error III and IV are overruled. Judgment affirmed. -17- 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. ROCCO, J., CONCURS. TIMOTHY E. McMONAGLE, J., CONCURS IN JUDGMENT ONLY WITH SEPARATE CONCURRING OPINION. ______________________ JAMES M. PORTER Presiding 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 of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(a). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72113 STATE OF OHIO : : PLAINTIFF-APPELLEE : C O N C U R R I N G : v. : O P I N I O N : RONALD BURRELL : : DEFENDANT-APPELLANT : DATE: APRIL 16, 1998 TIMOTHY E. McMONAGLE, J., CONCURRING IN JUDGMENT ONLY: Since it is with some reluctance that I concur with the majority, I feel compelled to express my dissatisfaction with the state of the law as it pertains to appellant's claim of ineffective assistance of counsel for trial counsel's failure to request findings of fact. Crim.R. 12(E) is plain on its face and states that the court shall state its essential findings on the record. By judicial fiat, however, the courts of this state have interpreted the term shall to mean shall if asked. See Bryan v. Knapp (1986), 21 Ohio St.3d 64; see, also, State v. Brown (1992), 64 Ohio St.3d 476. If the legislature had intended to require that a criminal defendant request findings as a prerequisite to the trial court performing its duty under this rule, it would have unequivocally stated as much. We now not only have to live with this judicial misinterpretation but have allowed further contortion of this rule. See, e.g., Parma v. Reschke (Feb. 14, 1991), Cuyahoga App. No. 58015, unreported. -2- .