COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78305 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION LARRY JOHNSON : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : MAY 31, 2001 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-381,340 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: WILLIAM D. MASON Cuyahoga County Prosecutor CAROL M. SKUTNIK, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender CARLOS WARNER, Assistant 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44ll3-1569 KENNETH A. ROCCO, P.J.: Defendant-appellant Larry Johnson appeals from his conviction after a jury trial on one count of possession of cocaine. -2- Appellant asserts his conviction is neither based upon sufficient evidence nor supported by the weight of the evidence. Appellant also asserts the trial court wrongly instructed the jury that drugs may be jointly possessed. Finally, appellant asserts his counsel rendered constitutionally ineffective assistance in failing to object to the trial court's jury instruction. After a thorough review of the record, this court can agree with none of appellant's assertions. Appellant's conviction, therefore, is affirmed. Appellant's conviction results from an incident that occurred on the evening of March 29, 1999. Three members of the Cleveland Police Department Fourth District's "Fresh Start" Unit were on routine assignment in their marked vehicle. Officer Dennis Wondrak drove; he was accompanied by Officer Albin Negron in the passenger seat and Officer Robbie Durbin in the rear seat. At approximately 9:30 p.m., they turned off of Kinsman Avenue to proceed southbound on East 116th Street. When they reached the intersection of Regalia Avenue, Negron noticed a "Bonneville"1 parked a few feet from the curb. Negron "observed someone come up to [the] car ***. It looked like a hand transaction" quickly took place. As he continued to watch, he saw "the person walk[] off." Believing he may have seen a drug purchase, Negron instructed Wondrak to turn around. As the officers now approached the inter- 1Quotes indicate testimony given by a witness at appellant's trial. -3- section from the northbound direction, they saw another person step to the parked Bonneville and make an exchange. The officers at this point decided to investigate. Wondrak "pulled in" behind the Bonneville and activated the police vehicle's overhead lights. As Wondrak approached the driver's side of the Bonneville, the two other officers moved toward the pas- senger side. The officers saw three men in the Bonneville; all were moving. Negron clearly could see the two men in the front seat "stuffing something toward the center of the vehicle" where the ashtray was located. The rear passenger also was "doing something." When Wondrak reached the driver's window, he asked to see an operator's license. The driver, later identified as appellant, told Wondrak he had none. Appellant seemed "nervous and fidgety"; he could not seem to remain "still." At that point, the officers requested the Bonneville's occupants exit the vehicle, whereupon the three men were subjected to a pat-down search for the officers' safety. Even during this procedure, appellant "kept fidgeting, moving, taking his hands off the car." Upon assuring themselves the men had no weapons, the officers first radioed for assistance, then handcuffed the three men and placed them in the rear of the police vehicle. Appellant initially was placed on the rear seat of the driver's side but was con- strained to move to the center of the seat when one of his companions, later identified as Rayshawn Smith, also was placed into the rear seat. -4- Negron escorted the other suspect, later identified as Lavelle Smith, to the police vehicle's rear seat on the passenger side. Prior to seating his detainee, Negron lifted the rear bench seat "just to check [his] corner. Nothing was there." Negron reposi- tioned the rear seat, then placed Lavelle Smith into the police vehicle. Once the suspects thus were secure, the officers looked into the Bonneville to determine "what they were trying to hide." Wondrak discovered "a plastic bag with cocaine residue" protruding from the front ashtray, and Durbin recovered a "blunt of marijuana" from the rear ashtray. Negron took custody of these materials. A few minutes later, another police unit arrived. Since this unit was equipped with a "screen" separating the front and rear compartments, the three suspects were transferred into this vehicle for transport to the police station. As Wondrak and Durbin accomplished the transfer, the newly-arrived officer, Charles Lipscomb, was directed to follow routine procedure by "check[ing] the back seat" of the first police vehicle after the suspects had been removed. Thus, Lipscomb "leaned into the car, picked up the bottom half of the rear seat, and just picked it up and looked underneath the actual seating area." On the floor of the police vehicle, approximately one-third of the distance from the driver's side door, Lipscomb observed "two plastic bags, wrapped plastic bags, containing crack cocaine." Later laboratory analysis of the contents of the bags established the total weight of the drug contained in the bags at 7.71 grams. -5- Appellant and Rayshawn Smith subsequently were indicted together on two counts, viz. (1) possession of crack cocaine in an amount greater than five grams but less than ten grams, R.C. 2925.11(A) and (C)(4)(c); and (2) preparation of drugs for sale, R.C. 2925.07. The second count of the indictment later was dismissed by the state. The case proceeded to a jury trial. The state presented the testimony of Wondrak, Negron, Lipscomb and Durbin, and the parties stipulated to the results of the laboratory analysis. Following the denial of their motions for acquittal, appellant and his co- defendant both declined to present evidence. The jury thereafter returned a verdict of guilty. The trial court ordered a presentence investigation and report prior to sentencing appellant to a term of imprisonment of two years. Appellant has filed a timely appeal of his conviction and presents four assignments of error for review. Appellant's first and second assignments of error state: I. APPELLANT JOHNSON'S CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE IN VIO- LATION OF THE FIFTH AND FOURTEENTH AMEND- MENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10, [OF] THE OHIO CONSTITUTION WHERE THE PROSECUTION FAILED TO PRESENT EVIDENCE OF POSSESSION. II. THE CONVICTION AGAINST MR. JOHNSON WAS AGAINST THE MANIFEST WEIGHT OF THE EVI- DENCE WHEN THERE WAS NO SUBSTANTIAL EVI- DENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. Appellant argues his conviction is supported by neither sufficient evidence nor the weight of the evidence. Appellant -6- contends the state failed to prove he actually possessed the bags of crack cocaine found beneath the police vehicle's rear seat; therefore, his motions for acquittal improperly were overruled and his conviction must be vacated. Appellant's argument lacks merit. A defendant's motions for acquittal should be denied if the evidence is such that reasonable minds could reach different con- clusions as to whether each material element of the crime has been proven beyond a reasonable doubt. State v. Dennis (1997), 79 Ohio St.3d 421; State v. Jenks (1991), 61 Ohio St.3d 259; State v. Bridgeman (1978), 55 Ohio St.2d 261. The trial court is required to view the evidence in a light most favorable to the state. State v. Martin (1983), 20 Ohio App.3d 172. With regard to an appellate court's function in reviewing the weight of the evidence, the supreme court has set forth the follow- ing as the relevant analysis: *** Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may never- theless conclude that the judgment is against the weight of the evidence. (Citation omit- ted.) *** When a court of appeals reverses a judg- ment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a thirteenth juror and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs [v. Florida (1982)], 457 U.S. [31], at 42, 102 S.Ct. [2211] at 2218, 72 L.E.2d [652] at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibil- ity of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a mani- -7- fest miscarriage of justice that the convic- tion must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. ). State v. Thompkins (1997), 78 Ohio St.3d 380 at 387. (Emphasis added.) Thus, this court must be mindful that the weight of the evidence and the credibility of the witnesses are matters primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, syllabus 1. Although the mere presence of a person in the vicinity of contraband is not enough to support the element of possession, if the evidence demonstrates defendant was able to exercise dominion or control over the illegal objects, defendant can be convicted of possession. State v. Wolery (1976), 46 Ohio St.2d 316; cf., State v. Haynes (1971), 25 Ohio St.2d 264. Moreover, where an amount of readily usable drugs is in close proximity to a defendant, this constitutes circumstantial evidence to support the conclusion that the defendant was in constructive possession of the drugs. State v. Benson (Dec. 24, 1992), Cuyahoga App. No. 61545, unreported; State v. Pruitt (1984), 18 Ohio App.3d 50. Furthermore, circum- stantial evidence alone is sufficient to support the element of constructive possession. State v. Jenks, supra; State v. Lavender (Mar. 12, 1992), Cuyahoga App. No. 60493, unreported. In this case, Negron testified the police vehicle had been checked prior to the officers' tour of duty and had contained no contraband. His testimony on this matter was corroborated by -8- Wondrak's. Negron further testified that the officers had placed no one in the rear of the police vehicle prior to their arrest of appellant and his companions. Finally, Negron testified that after appellant and his co-defendant had been seated in the rear seat on the driver's side, he once again checked under the seat before placing Lavelle Smith in the police vehicle. Lipscomb testified he looked inside the police vehicle immediately after the three men had been removed. Upon lifting the bench seat, approximately one-third of the distance from the rear driver's side door and toward "the back of the seat," he saw the two bags. This location precisely was between the places where Rayshawn Smith and appellant had been seated moments before. On similar facts as those presented by the evidence in this case, this court has determined that since the contraband could have been placed in its location only by someone in its immediate vicinity, each defendant was able to exercise dominion or control over it, thus establishing the requisite element of possession. State v. Jones (Dec. 24, 1997), Cuyahoga App. No. 71922, unre- ported; State v. Roundtree (Dec. 3, 1992), Cuyahoga App. No. 61131, unreported; State v. McCall (July 8, 1992), Cuyahoga App. No. 63103, unreported; see, also, State v. Richard (Dec. 7, 2000), Cuyahoga App. No. 76796, unreported; State v. Rogers (May 21, 1998), Cuyahoga App. Nos. 72736, 72737, unreported. Appellant's conviction for possession of crack cocaine, therefore, was supported by both sufficient evidence and the weight -9- of the evidence. State v. Jones, supra; State v. Davis (Sept. 24, 1998), Franklin App. No. 98AP-192, unreported. Accordingly, appellant's first and second assignments of error are overruled. Appellant's third assignment of error states: THE TRIAL COURT COMMITTED PLAIN ERROR IN VIOLATION OF THE FOURTEENTH AMENDMENT [TO] THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10, OF THE OHIO CONSTITUTION WHEN INSTRUCTED (SIC) THE JURY ON "JOINT POSSES- SION." Appellant argues the trial court's instruction to the jury that "two or more persons may have possession" of an object constituted plain error. Appellant bases his argument on an assertion the evidence presented in the case failed to support such an instruc- tion. In view of this court's disposition of appellant's previous assignments of error, however, appellant's argument lacks merit. The officers' testimony supported a conclusion either defen- dant or both co-defendants "had the ability to direct and control" the placement of the bags of drugs onto the rear floor of the police vehicle. State v. Jones, supra. Under these circumstances, a jury instruction on joint possession is appropriate. Id. Consequently, appellant's third assignment of error also is overruled. Appellant's fourth assignment of error states: APPELLANT JOHNSON WAS DENIED EFFECTIVE ASSIS- TANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10, OF THE OHIO CONSTITUTION WHEN HIS COUNSEL FAILED TO -10- OBJECT TO THE "JOINT POSSESSION" JURY INSTRUC- TION. Appellant argues his trial counsel rendered inadequate assistance to his defense in derogation of his constitutional rights by failing to object to the trial court's jury instruction regarding joint possession. Once again, however, this court's disposition of appellant's third assignment of error renders his argument unpersuasive. The claim of ineffective assistance of counsel requires proof that "counsel's performance has fallen below an objective standard of reasonable representation" and, in addition, prejudice arises from counsel's performance. State v. Bradley (1989), 42 Ohio St.3d 136, syllabus 2. The establishment of prejudice requires proof "that there exists a reasonable probability that were it not for counsel's errors, the result of the trial would have been differ- ent." Id., syllabus 3. The burden is on defendant to prove ineffectiveness of counsel. State v. Smith (1985), 17 Ohio St.3d 98. Moreover, trial counsel is strongly presumed to have rendered adequate assistance. Id.; see, also, Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. With the foregoing principles of law in mind, a review of the record in this case fails to demonstrate counsel's performance fell below an objection standard of reasonableness. Counsel is not required to perform a vain act. The evidence presented justified a jury instruction regarding "joint possession"; therefore, coun- sel's failure to object to the instruction by itself does not support a conclusion counsel performed inadequately. State v. -11- Young(Feb. 22, 1996), Cuyahoga App. Nos. 69010, 69011, unreported. Furthermore, the record demonstrates counsel was well-prepared and vigorous in his cross-examination of the police officers, thereby alerting the jury to be aware of discrepancies between the witnesses' recollections of the events. State v. Fairrow (Nov. 27, 1995), Ross App. No. 95 CA 2096, unreported. Since, therefore, appellant cannot meet his burden to prove trial counsel rendered ineffective assistance in appellant's defense, appellant's fourth assignment of error also is overruled. Appellant's conviction is 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 Cuyahoga County Court of Common Pleas 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. PATRICIA A. BLACKMON,J. and TERRENCE O'DONNELL,J. CONCUR PRESIDING JUDGE KENNETH A. ROCCO 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. 22. 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)(1). .