COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78606 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION BEONCA L. MASON : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : JULY 5, 2001 CHARACTER OF PROCEEDING : Criminal appeal from : Cuyahoga County : Court of Common Pleas : Case No. CR-385,169 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: WILLIAM D. MASON Cuyahoga County Prosecutor ELEANORE E. HILOW, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES P. SAMMON Attorney at Law Reminger & Reminger Co., L.P.A. 237 W. Washington Row, 2nd Floor Sandusky, Ohio 44780 KENNETH A. ROCCO, P.J.: Defendant-appellant Beonca Mason appeals from her convictions after a jury trial for possession of cocaine and possession of criminal tools. -2- Appellant asserts her convictions are neither based upon sufficient evidence nor sustained by the weight of the evidence. Appellant further contends the trial court acted improperly when it permitted the state to reopen its case in order to establish venue. Finally, appellant contends her trial counsel rendered ineffective assistance by neglecting to present certain evidence to the jury. After a thorough review of the record, this court finds no grounds upon which to reverse appellant's convictions; they, therefore, are affirmed. Appellant's convictions result from an incident that occurred on November 1, 1999. On that day, after a period of surveillance and some controlled buys, Cleveland police officers executed a search warrant for the premises located at 10112 Garfield Avenue, Apartment 1. In obtaining the warrant, the police detectives had ascer- tained it was the residence of Darnell Mongo, the lessor, and appellant, who paid the utility bills. The owner of the apartment building, David Mongo, was Darnell's brother. David lived at another location. During the seventy-two hours preceding the execution of the search warrant, the detectives had observed all three persons present at the apartment. Upon execution of the search warrant, Detective Andre Haynesworth was one of the first officers inside the door. As he entered the premises, he saw appellant in the kitchen next to David Mongo; "she was in the process of handing him an item *** and he was dumping the items [into] the sink, trying to push them down the -3- sink drain."1 Mongo was surrounded by drug paraphernalia and cooking utensils coated with residue. The items he and appellant were passing held a substance that later was determined to be crack cocaine. Appellant wore "a pair of flip-flop slippers, *** blue sweat pants, and a white colored T-shirt." The persons found in the apartment were "secured." The officers thereafter commenced the search for evidence. They were aided in their endeavor by a "narcotics dog." Only one of the apartment's bedrooms appeared to be occupied. During Detective Tommie Hall's perusal of the occupied bedroom, he observed several drug-related items had been placed on the bed and the dresser, including "three bags" of powdered cocaine, "razor blades with *** residue on them," and a "spoon" and a "plate." Alerted by the dog, Hall also found on the closet floor several pairs of both men's and women's shoes into the toe areas of which plastic bags of cocaine had been placed. The closet also contained both men's and women's clothing. The officers ultimately recovered in their search of the premises 247.69 grams of powdered cocaine that had been packaged in plastic bags,2 most of which had been found in the occupied bedroom. The officers also recovered a significant amount of crack cocaine from other areas in the apartment, and Mongo was found to have a large amount of money on his person. 1Quotes indicate testimony given by a witness at appellant's trial. 2The parties stipulated as to both the analysis and the weight. -4- Two days after the incident, appellant gave a written statement to the police. Although she admitted she had lived at the apartment with Darnell Mongo in the occupied bedroom and further admitted she was aware David Mongo was involved in the sale of drugs on the premises, she claimed all of the drugs discovered in the search belonged to David. She further claimed that she had moved from the apartment prior to the incident because she did not approve of the drug activity. She asserted she had returned on the day of the incident only to "get [her] clothes that were left" there. Appellant ultimately was indicted as a result of the execution of the search warrant on three counts as follows: (1) possession of cocaine in an amount greater than one hundred grams, R.C. 2925.11; (2) preparation of cocaine for sale, R.C. 2925.07, with a school- yard specification; and (3) possession of criminal tools, to-wit: "scale, mixer, computer," R.C. 2923.24. Appellant pleaded not guilty to the charges at her arraignment and retained counsel to represent her. Appellant's case proceeded to a jury trial. The state presented the testimony of three of the investigating law enforce- ment officers. The state also introduced into evidence several photographs taken of the items recovered during the search. At the close of the state's case, the trial court reminded the prosecutor that none of the state's witnesses directly had established venue. The trial court at that time, over defense counsel's objection, -5- permittedthe prosecutor to reopen the case to cure this "technicality." Following the trial court's denial of her motion for acquit- tal, appellant testified in her own behalf and presented the testimony of David Mongo and her grandmother. Appellant restated her claims she no longer lived at the apartment at the time of the incident and had no involvement in the drug business being conducted there. Her two witnesses supported her claims. Appellant further indicated she was "afraid" of Darnell Mongo. Thereafter, the state presented one witness to rebut appel- lant's testimony she was subjected to "a lot of foul language" when she gave her written statement. Subsequently, the jury returned verdicts of guilty on counts one and three, possession of cocaine and criminal tools, but not guilty of count two, preparation of drugs for sale. The trial court ordered a presentence investigation and report before sentencing appellant to concurrent terms of incarceration of two years on count one and six months on count three. Appellant has filed a timely appeal of her convictions. She presents three assignments of error for review. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN NOT GRANTING DEFENSE COUNSEL'S MOTION FOR ACQUITTAL AND ALLOWING THE RE-OPENING OF THE STATE'S CASE AFTER THE STATE HAD RESTED WITHOUT PROVIDING ANY EVI- DENCE TO PROVE VENUE IN ITS CASE IN CHIEF. Appellant asserts the trial court acted improperly both in denying her motion for acquittal of the charges since the state failed to establish "the essential element of venue" and also in -6- permitting the state to reopen its case to provide evidence to prove that element. This court disagrees. A defendant's motion for acquittal should be denied if the evidence is such that reasonable minds could reach different conclusions 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. A trial court is required to view the evidence in a light most favorable to the prosecution. State v. Martin (1983), 20 Ohio App.3d 172. R.C. 2901.12(A) provides: S 2901.12 Venue. (A) The trial of a criminal case in this state shall be held in a court having juris- diction of the subject matter, and in the territory of which the offense *** was commit- ted. Proper venue permits the defendant to be tried in the jurisdiction in which the offender committed the crime. State v. Headley (1983), 6 Ohio St.3d 475. Although not a "material element" of a crime, as appellant asserts, it is a factual issue that must be proven beyond a reasonable doubt. State v. McCartney (1988), 55 Ohio App.3d 170; State v. Vrona (1988), 47 Ohio App.3d 145; State v. Robinson (Nov. 29, 1996), Lake App. No. 96-L-017, unreported. However, it need not be proven only in express terms; it also may be proven by all the facts and circumstances presented in the case. State v. Vrona, supra; State v. Khong (1985), 29 Ohio App.3d 19. A review of the testimony in this case demonstrates the state met its burden to prove venue. -7- The state's first witness, Detective Hall, testified he was an officer of the "Cleveland Police Narcotics Unit." He further testified he was so employed on November 1, 1999, when he took part in the execution of a "County Search Warrant" at 10112 Garfield Avenue. Another state's witness, "Cleveland Police" Detective Jamal Ansari, testified that two days later, he took appellant's written statement concerning the incident. Ansari read appellant's statement into the record during his cross-examination, including the portion that advised appellant she had been arrested "at the location of 10112 Garfield Avenue, Apartment 1" and "[d]uring the execution of a Cuyahoga County Search Warrant." From the facts and circumstances presented in the case, therefore, a rational factfinder could have found the evidence was sufficient to establish venue. State v. Dixon (Nov. 8, 2000), Summit App. No. 19971, unreported; cf., State v. Shaw (1999), 134 Ohio App.3d 316. Even if it were not, however, it was within the trial court's discretion to permit the state to reopen its case for omitted evidence to be introduced. R.C. 2945.10(D); State v. Collins (1977), 60 Ohio App.2d 116. In view of the testimony of the state's witnesses that already had provided at least circumstantial evidence of proper venue, the trial court did not abuse its discretion in this case. State v. Bunch (July 11, 1979), Hamilton App. No. C-780578, unreported. Appellant's first assignment of error, accordingly, is overruled. -8- Appellant's second assignment of error states: APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THEREBY VIOLATED THE DUE PROCESS CLAUSE OF THE FOUR- TEENTH AMENDMENT OF THE UNITED STATES CONSTI- TUTION AND THE OHIO CONSTITUTION. Appellant argues her convictions are not sustained by the weight of the evidence. She contends the evidence presented by the state, when contrasted with the evidence she presented, failed to establish her constructive possession of the cocaine and the criminal tools. Appellant's argument is unpersuasive. With regard to an appellate court's function in reviewing the weight of the evidence, the supreme court has set forth the following 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- 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."). -9- 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 at the residence in which contraband is discovered 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 a sizable 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 con- structive possession of the drugs. State v. Benson (Dec. 24, 1992), Cuyahoga App. No. 61545, unreported; State v. Pruitt (1984), 18 Ohio App.3d 50. The same reasoning applies to the discovery of other contraband in close proximity to the defendant. State v. Roundtree (Dec. 3, 1992), Cuyahoga App. No. 61131, unreported. Furthermore, circumstantial 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, the state presented the testimony of two police detectives who had surveilled the apartment for some time. -10- Haynesworth testified he had observed drug-related activities taking place at times when appellant was present therein. The utility bills that came to the apartment were in appellant's name. On the occasion of the execution of the search warrant, Haynesworth observed appellant, dressed in sweat pants, T-shirt and slippers, aiding David Mongo in disposing of large amounts of drugs. Mongo obviously had been "cooking" cocaine. Hall subsequently found significant amounts of cocaine and also some drug paraphernalia in the apartment's only occupied bedroom. The cocaine was found packed in plastic bags not only on the bed but also placed deep inside shoes in the closet. Some of these shoes clearly were women's. The officers also found women's clothing hanging in the closet; no suitcases or large bags were observed. Two days later, appellant gave a statement in which she gave as her place of employment the address of the apartment searched by the officers and acknowledged she had shared the occupied bedroom at that address with Darnell Mongo. Appellant's story of returning to the apartment only to retrieve her clothing lacked credibility in the face of her testimony that although she considered Darnell Mongo "abusive" and was "afraid" of him, she permitted her grandmother simply to "drop[] [her] off" at the apartment on November 1, 1999. Moreover, David Mongo's testimony contradicted appellant's protestation that she was not involved in the drug activity taking place in the apartment. -11- In short, based upon the evidence presented in this case, this court cannot determine the jury clearly lost its way in resolving either conflicts in the testimony or issues of credibility. State v. Acevedo (Aug. 3, 2000), Cuyahoga App. No. 76528, unreported; State v. Allen (Sept. 10, 1998), Cuyahoga App. No. 73055, unre- ported. Appellant's convictions, therefore, were not against the manifest weight of the evidence. Accordingly, appellant's second assignment of error also is overruled. Appellant's third assignment of error states: APPELLANT WAS DENIED HER CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL COUNSEL FAILED TO SECURE FOR TRIAL THE PRES- ENCE OF APPELLANT'S EX-BOYFRIEND, DARNELL MONGO AND FAILED TO APPRIZE (SIC) THE JURY OF DARNELL MONGO'S PENDING CHARGES OF ASSAULT AGAINST THE APPELLANT. Appellant argues the trial counsel she retained to represent her provided constitutionally ineffective assistance. Appellant contends counsel compromised the presentation of a proper defense by failing to produce either Darnell Mongo as a witness or evidence that criminal charges were pending against Darnell Mongo which would support appellant's testimony. Appellant's argument lacks merit. In Ohio, a properly licensed attorney is presumed competent. State v. Smith (1985), 17 Ohio St.3d 98. One claiming ineffective assistance of counsel bears the burden of demonstrating the following: (1) there has been a substantial violation of an essential duty owed to her by counsel, and (2) she has been thereby -12- prejudiced. State v. Bradley (1989), 42 Ohio St.3d 136, citing Strickland v. Washington (1984), 466 U.S. 668; see, also, State v. Smith, supra.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." State v. Bradley, supra, at syllabus 3. Moreover, this court will not second-guess what could be considered to be a matter of trial strategy. Statev. Smith, supra. The record of this case with regard to trial counsel's actions fails to demonstrate counsel's performance fell below an objective standard of reason- ableness. The decision to call a witness at trial is clearly within the ambit of trial strategy and is, therefore, a matter for which this court will not substitute an opinion. State v. Hunt (1984), 20 Ohio App.3d 310. In this case, a review of defense counsel's comments during opening and closing arguments and of counsel's questions of the witnesses reveals counsel purposely attempted to portray Darnell Mongo as the person primarily responsible for the trouble in which the innocent appellant found herself. Calling Darnell as a witness, therefore, rather than lending weight to appellant's credibility, severely could have damaged it. State v. Mallard (June 30, 1994), Cuyahoga App. No. 65743, unreported. Similarly, appellant's assertion that collateral evidence concern- ing Darnell's criminal record could have supported her testimony simply is speculation. State v. Corrothers (Feb. 2, 1998), Cuya- -13- hoga App. No. 72064, unreported; State v. Wilcox (July 8, 1993), Cuyahoga App. No. 63112, unreported. Moreover, a review of the record demonstrates defense counsel was well-prepared, knowledgeable and thorough in his representation of his client throughout the proceedings. Indeed, counsel's efforts proved to be quite successful, in part, since the jury acquitted appellant of the most serious charge against her. Appellant, therefore, cannot meet her burden to prove counsel provided inadequate assistance. State v. Acevedo, supra. Conse- quently, appellant's third assignment of error also is overruled. Appellant's convictions are affirmed. -14- 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. MICHAEL J. CORRIGAN, J. and COLLEEN CONWAY COONEY, 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). .