COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73514 STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JOURNAL ENTRY : AND CARLOS MORRIS : OPINION : Defendant-Appellant : DATE OF ANNOUNCEMENT : OCTOBER 29, 1998 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court Case No. CR-350,371 JUDGMENT : Affirmed in part, reversed in part, and remanded. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Sharon L. Marshall, Esq. Assistant Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113-1569 For defendant-appellant: James A. Draper, Esq. Cuyahoga County Public Defender Darin Thompson, Esq. Asssistant Public Defender 1200 West Third Street 100 Lakeside Place Cleveland, Ohio 44113-1569 MICHAEL J. CORRIGAN, J.: Defendant-appellant, Carlos Morris, appeals his conviction in the Cuyahoga County Court of Common Pleas, Criminal Division, of -2- one count of possession of drugs in violation of R.C. 2925.11. Defendant-appellant raises three errors for review. This court, finding error, affirms defendant-appellant's conviction in part, reverses in part and remands this case to the trial court for further proceedings consistent with this opinion. On April 30, 1997, the Cuyahoga County Grand Jury returned a single-count indictment against defendant-appellant alleging he knowingly, obtained, possessed, and/or used one gram or less of crack cocaine. On May 23, 1997, defendant-appellant entered a plea of not guilty. On July 9, 1997, defendant-appellant filed a motion to suppress, which was denied. A jury trial commenced on October 7, 1997 where the state presented the testimony of the two arresting officers. Officer Jason Young testified that on March 27, 1997 at approximately 3:05 p.m., he and his partner were responding to drug complaints in the area of Bartlett Avenue and East 140th Street in Cleveland, Ohio. He testified that as they approached in their patrol car, he observed defendant-appellant and one or two other males standing on the corner. Officer Young testified that when defendant-appellant saw the officers, he observed defendant- appellant drop something and begin walking away. Officer Young detained defendant-appellant and his partner, and with the help of other officers on the scene, retrieved the object thrown to the ground. Since the object appeared to be a bag with crack cocaine inside, the officers arrested defendant-appellant. The state also called Detective Echols to testify. The detective was working with -3- Detective Anderson and was responding to citizen and councilmatic complaints of drug activity in the area of Bartlett and East 140th. He testified that there is a high volume of drug activity that happens along that area. At approximately 3:00 - 3:05 p.m., Detective Echols observed three males standing on the corner of 154th and Bartlett. As he approached the intersection, one of the males quickly left on a bicycle. The detective testified that as the individual rode away, he observed defendant-appellant take a few steps back, open his hand, and discard something. Detective Echols and his partner stopped and questioned the individual on the bicycle and he observed Officer Young detain defendant-appellant and pick up the object from the ground. He then identified the object as being three rocks of crack cocaine in a bag which was introduced as evidence. Defendant-appellant testified that he resides approximately two to three minutes from where he was arrested. He went on to testify that in the past he had pled guilty to a number of drug violations. Defendant-appellant testified that on the morning of March 27, 1997, he went to work at Brown's Tree Service. At approximately 3:00 p.m., he got off work and began walking to a friend's house on East 154th Street. Defendant-appellant ran into two acquaintances on the corner and stopped to talk with them. At that point in time, he observed the police coming towards him. Defendant-appellant testified that one of the individuals he was talking with quickly rode off on his bicycle. Defendant- appellant suspected trouble and began walking away from the corner. -4- Defendant-appellant testified that the police then stopped him, found crack cocaine lying on the sidewalk next to him, and placed him under arrest. Defendant-appellant testified that he never saw the drugs before and at no time did he have any drugs in his possession. On October 8, 1997, the jury returned a verdict of guilty of one count of possession of drugs in violation of R.C. 2925.11. Defendant-appellant was sentenced to one year incarceration. It is these proceedings from which defendant-appellant now appeals. Defendant-appellant states as his first assignment of error: I. TRIAL COUNSEL'S FAILURE TO OBJECT TO THE LACK OF A JURY INSTRUCTION REGARDING THE PERMISSIBLE USE OF APPELLANT'S PRIOR CONVICTIONS DEPRIVED APPELLANT OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10, OF THE OHIO CONSTITUTION. Defendant-appellant argues that the failure to request a vital jury instruction may constitute ineffective assistance of counsel. In this case, defendant-appellant argues his prior bad acts, i.e., prior drug convictions, could not have been used to demonstrate conformity therewith. Defendant-appellant argues defense counsel's failure to object to the lack of a jury instruction on the permissible use of the evidence falls below the objective standard of reasonable representation. Finally, defendant-appellant argues it is reasonably probable that defense counsel's failure to object to the lack of an instruction affected the outcome of the trial since the jury exhibited serious doubts as to the weight of the evidence. -5- In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668, State v. Brooks (1986), 25 Ohio St.3d 144. In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. The Supreme Court of Ohio, with regard to the issue of ineffective assistance of counsel, held in State v. Bradley (1989), 42 Ohio St.3d 136, that: When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910. This standard is essentially the same as the one enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668. *** Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. -6- Morrison, 449 U.S. 361, 364-365 (1981). Strickland, supra, at 691. To warrant reversal, [t]he defendant must show 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. Strickland, supra, at 694. In adopting this standard, it is important to note that the court specifically rejected lesser standards for demonstrating prejudice. ***. Accordingly, to show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. State v. Bradley, supra, at 141, 142. There is a strong presumption that licensed attorneys are competent and that the challenged action is the product of a sound trial strategy. See State v. Hamblin (1988), 37 Ohio St.3d 153. Even debatable trial tactics do not constitute ineffective assistance of trial counsel, for it is obvious that [n]othing is seen more clearly than with hindsight. State v. Clayton (1980), 62 Ohio St.2d 45, 49. For this reason, a reviewing court must evaluate trial counsel's performance on the facts of the particular case as of the time of counsel's conduct. Strickland, supra. See, also, State v. Nichols (1996), 116 Ohio App.3d 759. In this case, unlike a situation where the state attempts to introduce evidence of prior bad acts to impeach defendant's credibility, and/or demonstrate conformity, it was defense counsel who questioned defendant-appellant about his four prior drug convictions (wherein he pled guilty). It is clear from a reading of the transcript that defense counsel was attempting to demonstrate defendant-appellant had a drug problem in the past and acknowledged -7- that problem when he subsequently pled guilty to the charges. Defense counsel attempted to contrast that time in his life to the present wherein he has a child he supports, a fiancee and a full time job. Therefore, it is clear the introduction of defendant- appellant's prior bad acts was the product of trial strategy. However, defendant-appellant argues his counsel was ineffective by failing to object to the lack of a limited use instruction by the trial court with regard to such bad acts evidence. Not only does this raise potential implications of the invited error doctrine, but more importantly, we cannot find there exists a reasonable probability that but for the trial court's failure to provide a limiting instruction, the outcome of the trial would have been different. First, the state presented the testimony of two of the arresting officers who described in detail their approach of defendant-appellant and the fact that both observed defendant- appellant throw something on the ground and step away. The object was subsequently retrieved and identified as crack cocaine. Secondly, not only does defendant-appellant misconstrue and contribute a quote by the trial court as one being the position of the jurors, i.e., there are a lot of unanswered questions and the evidence is unclear, but there is no way to infer from the foreman's questions/requests that the jury, as a whole, had difficulty in their deliberations. Due to the sanctity of the jury and its deliberation process, we do not know whether the questions/requests posed by the foreman reflect the thought process -8- and/or reservations of the jury as a whole or of a single jury member. Hence, defendant-appellant's position that the jury had obvious difficulty with the evidence is untenable. Finally, as the state notes, the issue of defendant- appellant's prior bad acts was raised at voir dire. As a result, the trial court did in fact give a limiting instruction on the permissible use of appellant's prior convictions. As a result of this instruction, defense counsel had two jurors removed from the panel for cause. For all these reasons, we find there is not a reasonable probability that, but for defense counsel's failure to object to the lack of a limiting instruction on the use of bad acts, the outcome of the trial would have been different. Accordingly, defendant-appellant was not denied his right to the effective assistance of counsel. Defendant-appellant's first assignment of error is not well taken. Defendant-appellant states as his second assignment of error: II. APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant-appellant argues his guilty verdict is against the manifest weight of the evidence. Specifically, defendant-appellant argues the testimony of the two arresting officers lacks credibility since observing defendant-appellant dropping a small bag with three small rocks of crack cocaine from 50 to 75 feet during a drug sweep is simply incredible due to the distance between the parties. In support of this argument defendant- appellant cites to the inability of one of the officers to remember -9- how many individuals were standing at the corner at the time of the arrest. Article IV, Section 3(B)(3) of the Ohio Constitution authorizes appellate courts to assess the weight of the evidence independently of the fact-finder. Thus, when a claim is assigned concerning the manifest weight of the evidence, an appellate court has the authority and the duty to weigh the evidence and determine whether the findings of *** the trier of fact were so against the weight of the evidence as to require a reversal and a remanding of the case for retrial. State ex rel. Squire v. City of Cleveland (1948), 150 Ohio St. 303, 345. The standard employed when reviewing a claim based upon the weight of the evidence is not the same standard to be used when considering a claim based upon the sufficiency of the evidence. The United States Supreme Court recognized these distinctions in Tibbs v. Florida (1982), 457 U.S. 31, where the Court held that unlike a reversal based upon the insufficiency of the evidence, an appellate court's disagreement with the jurors' weighing of the evidence does not require special deference accorded verdicts of acquittal, i.e., invocation of the double jeopardy clause as a bar to re-litigation. Id. at 43. Upon application of the standards enunciated in Tibbs, the court in State v. Martin (1983), 20 Ohio App.3d 172, has set forth the proper test to be utilized when addressing the issue of manifest weight of the evidence. The Martin Court stated: There being sufficient evidence to support the conviction as a matter of law, we next consider the -10- claim that the judgment was against the manifest weight of the evidence. Here, the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. In this case, there is the testimony of two arresting officers who stated they both observed defendant-appellant drop something from his hand and step back when he saw the police approaching. Their description of the drug sweep is consistent with the testimony of defendant-appellant. In fact, defendant-appellant's version varies only in that he denied ever having possession of the drugs. Finally, there is no dispute that the bag which the officers said defendant-appellant dropped contained three small rocks of crack cocaine. It is important to note that the weight of the evidence and the credibility of the witnesses are issues primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. As we stated in State v. Thompson (Apr. 23, 1998), Cuyahoga App. No. 72044, unreported: The fact finder, being the jury (in this case) or the trial judge (in a waiver), occupies a superior position in determining credibility. The fact finder can hear and see as well as observe the body language, evaluate voice inflections, observe hand gestures, perceive the interplay between the witness and the examiner, and watch the witness's reaction to exhibits and the like. Determining credibility from a sterile transcript is a herculean endeavor. A reviewing court must, therefore, accord due deference to the credibility determinations made by the fact finder. -11- Given the above testimony of the arresting officers, we find there is sufficient, credible evidence which, if believed, would convince the average mind of defendant-appellant's guilt. Hence, the jury did not lose its way and create such a manifest miscarriage of justice as to require a new trial. Defendant- appellant's second assignment of error is not well taken. Defendant-appellant's third assignment of error states: III. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANT TO TWELVE (12) MONTHS OF INCARCERATION, THE MAXIMUM PERIOD ALLOWED BY LAW. Defendant-appellant argues the trial court failed to make the necessary findings under R.C. 2929.14(C). As such, defendant- appellant argues the maximum sentence imposed was in error and must be reversed. In this case, defendant-appellant was found guilty of possession of drugs in violation of R.C. 2925.11 in the amount of one gram or less. This constitutes a felony 5 violation under Senate Bill 2. Under R.C. 2929.14(A)(5), defendant-appellant could have been sentenced to prison for six, seven, eight, nine ten, eleven, or twelve months. R.C. 2929.14 goes on to state: (C) Except as provided in division (G) of this section or in Chapter 2925 of the Revised Code, the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section. -12- After a review of the transcript, it is clear that while recognizing statutory factors must be taken into consideration, the trial court nevertheless failed to make explicit findings mandated by R.C. 2929.14(C). Moreover, we have reviewed the court's journal entry wherein the court could have made the necessary findings in accordance with R.C. 2929.14. Again, the court failed in compliance. Therefore, we reverse the sentence of the trial court and remand the case to allow the trial court to make the requisite findings and re-sentence defendant-appellant accordingly. See State v. Banks (Nov. 20, 1997), Cuyahoga App. No. 72121, unreported. Defendant-appellant's third assignment of error is well taken. Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. -13- It is ordered that the parties shall share equally the 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 Cuyahoga County Common Pleas Court 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 execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KENNETH A. ROCCO, P.J., AND JAMES D. SWEENEY, J., CONCUR. JUDGE MICHAEL J. CORRIGAN 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 .