OHIO COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73252 CITY OF BEREA : : Plaintiff-Appellee : JOURNAL ENTRY : -vs- : AND : MARC A. FENSTER : OPINION : Defendant-Appellant : Date of Announcement of Decision: SEPTEMBER 17, 1998 Character of Proceeding: Criminal appeal from Berea Municipal Court Case No. 97-CRB-646-01 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellee: DEAN E. DEPIERO, ESQ. Asst. Director of Law City of Berea 11 Berea Commons Berea, Ohio 44017 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113 -2- JAMES M. PORTER, P.J.: Defendant-appellant Marc A. Fenster appeals from his conviction following a jury trial in Berea Municipal Court for allowing underage persons to remain in his residence while possessing or consuming beer or intoxicating liquor in violation of R.C. 4301.69(B). Defendant claims error in that he was deprived of due process and did not receive a fair trial because his privilege against self incrimination was violated; the prosecutor was guilty of misconduct; he was denied effective assistance of counsel; and the evidence was insufficient to establish the violation. We find no reversible error and affirm. On the evening of May 9, 1997, defendant Fenster, age 51, was at his residence located at 325 Berea Street, Apt. C., Berea, Ohio. At or about 7:00 p.m., a group of approximately fifteen juveniles ranging in age from thirteen to fifteen gathered at the neighboring apartment of a Mr. James Hill to celebrate his son's birthday. Sometime between 7:00 p.m. and 8:00 p.m., the party moved out of the Hill apartment onto the lawn and porch of the apartment building. It was at this time that a group decision was made to go to Fenster's. The group proceeded to shout and knock on the door of defendant who allowed the adolescents into his apartment. The juveniles remained in defendant's apartment for the next two and one-half to three hours. Three juveniles testified that the group had remained in the apartment during this time period and drank beer out of forty ounce bottles. All three juveniles also -3- testified that defendant was sitting on the couch with them as they were drinking the beer. One of the juveniles testified that the defendant brought out two forty ounce bottles of beer, cigars and cigarettes and handed them out to the juveniles. The defendant, on the other hand, testified that he never saw any beer that night being consumed by the juveniles, nor did he see any cigars or cigarettes. Defendant further testified that there was only a half bottle of beer in his refrigerator that night which later disappeared. During the time the juveniles were in the apartment, they damaged the carpeting, threatened to break the television and temporarily took possession of the keys to defendant's car. After the juveniles left, defendant discovered that the half bottle of beer which was in his refrigerator was missing. Based on the discoloration of his fish tank, he assumed that the contents of the bottle (approximately twenty ounces) had been poured into the aquarium. Based on previous inadequate police response to similar incidents, defendant did not place a call to the police. Instead, defendant, who had a history of psychological problems, tried to manage the situation as best he could in the hopes that the juveniles would decide to leave the apartment. Later that night, parents of some of the youths reported the episode to the police resulting in the charges. We will address defendant's assignments of error in the order presented. -4- I. THE LOWER COURT ERRED AND DENIED MARC FENSTER DUE PROCESS OF LAW WHEN IT ALLOWED EVIDENCE OF THE APPELLANT'S POST-ARREST SILENCE TO BE USED AGAINST HIM IN VIOLATION OF HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION. Defendant contends that his constitutional privilege against self incrimination was violated because his post-arrest silence was used against him. During the trial, Berea Det. Roger Vaughan testified that he went to defendant's apartment and confronted him with the charges. Det. Vaughan testified that the defendant did not sign the Miranda forms and would not speak about the situation. After Vaughan's statement, defense counsel objected on the grounds of hearsay, which the trial court overruled. This objection was properly overruled as the testimony was not offered for the truth of the matter asserted and therefore was not a violation of the hearsay rule. Evid.R. 801. The admission of this evidence constitutes harmless error. In order to hold error harmless, the court must be able to declare a belief that the error was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18; State v. Lytle (1976), 48 Ohio St.2d 391. A reviewing court may overlook an error where the admissible evidence comprises overwhelming proof of a defendant's guilt. State v. Williams (1983), 6 Ohio St.3d 281, 290. In Harrington v. California (1974), 395 U.S. 250, 254, the Supreme Court held that where evidence supplied in violation of a constitutional right was merely cumulative and the other evidence against the accused was overwhelming, the reviewing court could -5- conclude beyond a reasonable doubt that the denial of the accused's constitutional rights was harmless error. Furthermore, the court in State v. Rowe (1993), 92 Ohio App.3d 652, 670 held: Where an accused asserts his constitutional right to remain silent, his silence may not be used against him. Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91. The admission of testimony by a police officer regarding an accused's post-arrest silence constitutes reversible error when it is not clear beyond a reasonable doubt that absent this statement of the officer no juror could have entertained a reasonable doubt as to defendant's guilt. State v. Motley (1985), 21 Ohio App.3d 240, 242, 21 OBR 256, 258-259, 486 N.E.2d 1259, 1262. *** In other words, if without this statement any juror could still have a reasonable doubt as to appellant's guilt, so that the statement may be said to have made the difference between appellant's conviction and acquittal, the admission of the statement resulted in prejudice to appellant and would require reversal. In this case, the evidence against defendant was overwhelming as to his guilt. Although no proper objection was made to the self incriminatingnature of the testimony, it should be noted that the prosecution made no further reference to defendant's silence. Furthermore, three juvenile witnesses testified that they were present at defendant's house on the night in question and that beer was being consumed. Specifically, Deanna Hill and Amanda Bather testified that they saw underage individuals drinking beer at defendant's apartment. Gary Kusber testified that he also saw underage drinking and that he drank some beer while at the apartment. Gary further testified that defendant brought beer out and passed it to the juveniles. -6- With this overwhelming evidence, we find beyond a reasonable doubt that the statement by Det. Vaughan regarding defendant's silence made no difference between defendant's conviction or acquittal. The admission of the statement did not prejudice defendant. Accordingly, its admission constituted harmless error beyond a reasonable doubt. Defendant's Assignment of Error I is overruled. II. MARC FENSTER WAS DENIED A FAIR AND IMPARTIAL TRIAL AS THE RESULT OF THE PROSECUTOR'S MISCONDUCT. The defendant contends that the prosecutor engaged in unfair misconduct by asking a series of unanswerable questions which prejudiced the atmosphere of the trial against defendant. Q. HOW OFTEN DO YOU BUY BEER FOR THESE KIDS? Q. DO THEY GIVE YOU MONEY OR DO YOU JUST BUY IT FOR THEM? Q. WHY WERE YOU TRYING TO GET THE KIDS DRUNK THAT DAY? (Video Time Code 13:48:50 - 13:49:21). We agree these were improper when did you stop beating your wife questions. However, the conduct of the prosecuting attorney during trial cannot be made grounds for error unless the conduct deprives the defendant of a fair trial. State v. Phillips (1995), 74 Ohio St.3d 72. Furthermore, the test for prosecutorial misconduct is whether remarks or actions were improper and, if so, whether they prejudicially affected the substantial rights of the accused. State v. Boulabeiz (1994), 92 Ohio App.3d 238. -7- We find no prejudice here. As discussed above, the evidence against defendant in this case was overwhelming as to his guilt. Three juvenile witnesses testified that they were present at defendant's house on the night in question and that beer was being consumed. Gary testified that defendant brought beer out and passed it to the juveniles. With this overwhelming evidence, we find beyond a reasonable doubt that the questions made by the prosecutor made no difference between defendant's conviction or acquittal. This line of questioning did not prejudice defendant. Accordingly, its admission constituted harmless error beyond a reasonable doubt. Defendant's Assignment of Error II is overruled. III. THE LOWER COURT ERRED AS A MATTER OF LAW WHEN IT CONVICTED THE APPELLANT WHERE THERE WAS INSUFFICIENT EVIDENCE THAT HE VIOLATED CODIFIED ORDINANCE OF THE CITY OF BEREA S929.02(b). The standard of review with regard to the sufficiency of evidence was recently summarized by the Supreme Court in State v. Smith (1997), 80 Ohio St.3d 89, 113, as follows: 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 -8- 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 convicted of violating R.C. 4301.69(B). This section states: No person who is the owner or occupant of any public or private place shall knowingly allow any underage person to remain in or on the place while possessing or consuming beer or intoxicating liquor, unless the intoxicating liquor or beer is given to the person possessing or consuming it by that person's parent, spouse who is not an underage person, or legal guardian and the parent, spouse who is not an underage person, or legal guardian is present at the time of the person's possession or consumption of the beer or intoxicating liquor. Defendant argues unconvincingly that the City failed to offer sufficient evidence that beer was possessed or being consumed on defendant's premises. Three of the City's witnesses testified that beer was present at the time and place that the alleged violation took place. Specifically, witness Gary Kusber, a juvenile, testified that he drank beer at the defendant's apartment and that defendant passed out two bottles of beer to the juveniles on the date in question. Witnesses Amanda Baker and Deanna Hill also testified that they saw underage individuals drinking beer at the defendant's apartment. Defendant, on the other hand, testified that he did not see any beer being consumed by the juveniles that night. -9- The weight of the evidence and the credibility of the witnesses are primarily for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St.2d 230. 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), 56 Ohio St.2d 169, paragraph one of the syllabus. Clearly, the testimony of three of the City's witnesses that 40 ounce bottles of beer were present in the defendant's apartment and that underage individuals were consuming beer while defendant was present constituted sufficient evidence for the jury to convict the defendant for violation of the statute. More specifically, that defendant knowingly allowed underage individuals to remain in his apartment while possessing or consuming beer or other intoxicating liquor. Defendant's Assignment of Error III is overruled. IV. THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS. The standard of review for addressing an argument based on ineffective assistance of trial counsel was recently stated in State v. Brooks (1996), 75 Ohio St.3d 148, 157: Reversal of a conviction on the basis of ineffective assistance of counsel requires that the defendant show that counsel's performance was deficient and that the deficient performance prejudiced the defense, that is, deprived the defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. -10- In order to establish deficient performance, it must be shown that, under the totality of the circumstances, counsel's representation fell below an objective standard of reasonableness. Strickland, supra at 688. A court must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Id. at 694. In order to establish prejudice, it must be shown that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Id. Defendant asserts that counsel's performance was deficient in failing to object to the opinion testimony as to whether beer or intoxicating liquor was present, failing to move for an acquittal upon the close of the State's evidence, failing to request that beer and intoxicating liquor be properly defined in a jury instruction and failing to seek a mistrial based on the testimony of Det. Vaughan regarding defendant's silence. Defendant further asserts that he was prejudiced as a result of this deficient performance. We find that due to the overwhelming nature of evidence presented by the City in this case, it is clear that counsel's performance was reasonable and that there was no reasonable probability that, but for counsel's errors, the result of the trial would have been different. -11- As was discussed in response to defendant's Assignment of Error III, the City presented sufficient evidence to establish, beyond a reasonable doubt, the element of beer or intoxicating liquor being present at the time of the offense. The testimony of the City's three juvenile witnesses was sufficient and properly admitted by the court. Accordingly, counsel's failure to object to this evidence did not fall below an objective standard of reasonableness. Furthermore, as was discussed in response to defendant's Assignment of Error I, the court's admission of Det. Vaughan's statement regarding defendant's silence constituted harmless error and therefore did not prejudice defendant. Accordingly, counsel's failure to seek a mistrial based on this testimony also was not ineffective assistance of counsel. Because defense counsel's performance did not fall below an objective standard of reasonableness, defendant was not prejudiced and therefore was not denied the effective assistance of counsel. Defendant's Assignment of Error IV 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 Berea Municipal 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, J., and MICHAEL J. CORRIGAN, J., CONCUR. JAMES M. PORTER 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 .