COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72320 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION DAMIEN ROBINSON : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 5, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-346662. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Gail D. Baker Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Nicholas K. Thomas, Esq. The Brownhoist Building 4403 St. Clair Avenue Cleveland, Ohio 44103-1125 -2- SWEENEY, JAMES D., J.: Defendant-appellant Damien Robinson appeals from his convictions for possession of cocaine in violation of R.C. 2925.11 and possession of criminal tools in violation of R.C. 2923.24. The appellant was sentenced to a term of eleven months incarceration on each count, to be served consecutively. The court also ordered that the sentence in Cuyahoga County Common Pleas Court case number 335406 be served consecutively. On December 17, 1996, Cleveland Police Detective Gerald Crayton, along with other members of the sixth district vice unit, was assigned to investigate a complaint that liquor was being sold to minors at Maxine's Lounge. Maxine's is located at Alcoy and Euclid Avenue, an area in which numerous drug arrests have been made. When the vice unit arrived at the bar, Detective Robinson entered first, followed by Detective Crayton. As Detective Crayton entered the bar, he looked to his left. He observed the appellant and another man standing approximately ten feet away, by the pay telephones. The appellant held a large sum of money and a white plastic bag in his right hand (T. 94). Once the appellant noticed the officers, he placed the bag into his right coat pocket. The contents of the plastic bag were later determined to be cocaine. The police ordered the appellant to place his hands on the bar, but he failed to comply. Instead, the appellant was agitated, walking around and yelling. The appellant reached into his pockets and threw a pager (T. 101), a cellular telephone, money, and car keys over the bar (T. 98). When the appellant finally complied -3- with the order to place his hands on the bar, the officers patted him down. After the officers found the cocaine, they informed the appellant that he was under arrest. The appellant attempted to exit the bar. A scuffle ensued, and Detective McClendon maced the appellant in order to subdue him. Detective Crayton, a ten-year veteran officer, testified that cellular telephones and pagers are frequently used by people in the drug trade to contact suppliers or buyers. With respect to pagers, the officer testified that in at least 75% of the arrests for narcotics, a pager is recovered. While the pager and the telephone were recovered and presented as evidence, the money observed by Detective Crayton was never recovered. After the officers removed the appellant from the bar, the bar was reentered by Detective Crayton. The woman working behind the bar had gathered the items thrown by the appellant and placed them in a paper bag for the police. The money was not amongst these items. In court, Detective Crayton identified the appellant as the man holding the cocaine in Maxine's Lounge (T. 94). On cross-examination, Detective Crayton stated that he did not observe any sale of drugs involving the appellant, and did not observe any money changing hands. Detective Crayton admitted both that he never observed the cellular telephone in use, and that the telephone did not ring while in police custody. The detective was unsure whether or not the pager received any calls, but if calls were received, the police did not record any numbers and attempt to -4- discover whether or not the pager was being used as a tool in the drug trade. Detective Rodney McClendon testified that he entered the bar after Detectives Crayton, Robertson and Pilla. When the officers learned that the appellant was in possession of drugs, and was refusing to cooperate, they surrounded the appellant. The appellant placed his hands on the bar and Detective Crayton proceeded with the search. Detective McClendon observed that when Detective Crayton pulled the drugs out of the appellant's right front pocket, the appellant attempted to run for the exit. Detectives Crayton and Pilla wrestled the appellant, and finally Detective McClendon used mace. The appellant was handcuffed, taken out of the bar, and eventually transported to the police station. Detective William Robertson stated that the area of East 165th Street and Euclid Avenue is heavily dominated by drug sales and usage. Detective Robertson observed that the appellant was noncompliant with the requests of Detective Crayton, and he observed the appellant throw some objects over the bar. He also observed Detective Crayton recover the cocaine from the appellant's right front pocket. Once the drugs were recovered, the appellant attempted to flee. Detective Robertson did not participate in the arrest as his concern was crowd control. Prior to discussion of the appellant's assignments of error, this court must remind counsel that an appellate court may not add matter to the record before it, which was not a part of the trial court's proceedings, and then decide the appeal on the basis of the -5- new matter. State v. Ishmail (1978) 54 Ohio St.2d 402, syllabus 1. This court has therefore given no consideration to the exhibits attached to the appellant's brief. The appellant asserts two assignments of error. The first assignment of error: THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND UNDER ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION. The appellant argues that he was rendered ineffective assistance of counsel when counsel failed to file a motion requesting a competency hearing and by counsel's failure to enter a plea of not guilty by reason of insanity on behalf of his client. As precedent the appellant cites to State v. Brown (1992), 84 Ohio App.3d 414. The appellant also asserts that trial counsel failed to properly investigate his mental competency and his sanity at the time of the offense. The appellant asserts that trial counsel failed to bring his psychiatric condition to the attention of the court in a timely manner. The appellant argues that had trial counsel requested a competency hearing pursuant to R.C. 2945.37, the appellant would have been entitled to a competency hearing. In addition, the appellant cites to a portion of the transcript where, by questioning the appellant's mother, trial counsel attempted to raise his mental health difficulties during trial. When asked on direct examination whether or not the appellant had an illness or special situation, Mrs. Robinson responded in the affirmative (T. -6- 316-317). From this the appellant concludes that counsel erred by failing to enter a plea of not guilty by reason of insanity. To prevail on a claim for ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668. A properly licensed attorney is presumed to execute his duties in an ethical and competent manner. Ineffectiveness is demonstrated by showing that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment. State v. Hamblin (1988), 37 Ohio St.3d 153. To establish prejudice, a defendant must show that there is a reasonable possibility that, but for counsel's errors, the result of the proceeding would have been different. Strickland, supra. The Supreme Court has held that the term mental illness does not necessarily equate with the definition of legal incompetency. State v. Berry (1995), 72 Ohio St.3d 354. The Court cited to Pate v. Robinson (1966), 383 U.S. 375, and noted that it is a fundamental principle that a criminal defendant who is legally incompetent shall not be subjected to trial. In Dusky v. United States (1960), 362 U.S. 402, the United States Supreme Court set forth the test to determine whether a defendant is competent to stand trial, stating that the test must be whether the defendant has a present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as -7- well as a factual understanding of the proceedings against him. Berry, supra at 359. R.C. 2945.37(A) requires a trial court to hold a competency hearing when the issue is raised prior to trial. Where the trial has already begun, the court need only hold a hearing for good cause shown. The statute also states that the court shall not find a defendant incompetent to stand trial solely because he is receiving or has received treatment as a voluntary or involuntary mentally ill patient under Chapter 5122 of the revised code, or because he is receiving or has received psychotropic drugs or other medication under medical supervision, even though without the drugs or medication the defendant might become incompetent to stand trial. The case sub judice is easily distinguishable from Brown, supra, where there were clear indications to counsel that the client was mentally ill, as well as, perhaps, legally incompetent to stand trial. In Brown the defendant could not remember the crime of which he was accused and subsequently woke up in the psychiatric unit of the county jail; the appellant was talking to his mother at a service station where he believed her to be buried; the defendant stated that his mother did not want to be buried at the service station, and that he wanted to find a shovel to move her to a cemetery in another location. This court found that under those specific circumstances the issue of competency should have at least been raised by counsel. -8- In the case presently before this court, there are no such extreme circumstances. Here, there is no indication before trial court, and the record otherwise contains no evidence, that the appellant's competency to stand trial was even in question. There is no indication either during discussion between counsel and the bench, nor through argument or testimony, that the appellant lacked a present ability to consult with his lawyer with a reasonable degree of rational understanding, or that he lacked a rational as well as a factual understanding of the proceedings against him. Berry, supra. Since this court finds no evidence which brings into question the appellant's competency, the appellant was not rendered ineffective assistance of counsel by counsel's failure to raise the issue before the trial court. Unlike the issue of competency, the defense of not guilty by reason of insanity places into question the defendant's mental status at the time the crime was committed. The defense of not guilty by reason of insanity requires the defendant to establish that at the time of the commission of the offense, the defendant did not know, as a result of a severe mental disease or defect, the wrongfulness of the act. R.C. 2901.01(14). Thus a defendant must show that not only did he or she not appreciate the wrongfulness of the acts committed, but also that the defendant suffered from a severe mental disease or defect. State v. Wong (1994), 95 Ohio App.3d 39; State v. Wong (1994), 97 Ohio App.3d 244. This court finds no evidence contained in the record that counsel had any reason to believe that a plea of not guilty by -9- reason of insanity might have been an appropriate consideration in this particular case. Once more, in contrast to Brown, supra, this court finds no extreme circumstances. Here, there is no indication before trial court, and the record otherwise contains no evidence, that the appellant's sanity at the time of his possession of drugs and criminal tools was even in question. There is no indication either during discussion between counsel and the bench, or through argument or testimony that the appellant did not know, as a result of a severe mental disease or defect, the wrongfulness of possessing drugs and criminal tools. Finally, the record reflects no evidence that counsel failed to properly investigate on behalf of the appellant. Counsel sought out and subpoenaed witnesses from Maxine's Lounge who were otherwise unwilling to testify. Although serious concerns regarding the appellant's mental health status, if such exist, may have come to light at that time, based upon the facts before this court it is impossible to conclude that counsel erred by not raising these supposed concerns before the trial court. The appellant's first assignment of error is overruled. The second assignment of error: THE APPELLANT WAS DENIED HIS FIFTH AMENDMENT AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND UNDER ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION. The appellant asserts that there was insufficient evidence to support the appellant's conviction for possession of criminal tools. The appellant argues that the State failed to produce the -10- money seen by Detective Crayton and failed to prove that the pager and the cellular telephone were used in the commission of a crime. When the sufficiency of the State's evidence is challenged, 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 beyond a reasonable doubt. State v. Williams (1995), 73 Ohio St.3d 153 citing to Jackson v. Virginia (1979), 443 U.S. 307 and State v. Waddy (1992), 63 Ohio St.3d 424. The Supreme Court set forth the test for appellate review of the sufficiency of the evidence in State v. Jenks (1991), 61 Ohio St.3d 259, 273. A verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of fact. A reviewing court will not reverse a verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of the offense have been proven beyond a reasonable doubt. State v. Ely (1978), 56 Ohio St.2d 169; State v. DeHass (1967), 10 Ohio St.2d 230. This court has held that money and pagers found, along with drugs, are sufficient evidence to support a criminal tools conviction. State v. Tolbert (1996), 116 Ohio App.3d 86. Here, the appellant was seen with money and cocaine in his hands by Detective Crayton; the pager and the cellular telephone thrown by the appellant at the time of his arrest were recovered and placed into evidence; and Detective Crayton testified that pagers are -11- commonly used in the drug trade. This evidence is sufficient to support the appellant's conviction for possession of criminal tools. The appellant's second assignment of error is overruled. Judgment 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. TERRENCE O'DONNELL, P.J., and DIANE KARPINSKI, J., CONCUR. ______________________________ JAMES D. SWEENEY 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 .