State v. Perry , 2018 Ohio 487 ( 2018 )

[Cite as State v. Perry, 2018-Ohio-487.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105501
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL D. PERRY, JR.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-606650-A
BEFORE: Jones, J., McCormack, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: February 8, 2018
ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street, 2nd Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Janna R. Steinruck
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant, Michael Perry, Jr. (“Perry”), appeals his convictions for
possession of drugs and possessing criminal tools. We affirm.
{¶2} In 2016, Perry was charged with two counts of possession of drugs and one
count of possessing criminal tools. The matter proceeded to a bench trial.
{¶3} On April 20, 2016, Deontrinise Steele (“Steele”) took a break from her job as
a home health aide and went to visit her daughter. Steele parked her rented black Jeep
Cherokee outside of her daughter’s house and left the car running. When she returned
15-20 minutes later, the car was gone. Steele contacted the police.
{¶4} Cleveland police officers Detective Donald Kopchak (“Detective Kopchak”)
and Sergeant Jared Durichko (“Sergeant Durichko”) were on patrol when they saw a
black Jeep Cherokee driving erratically and swerving. The officers lost sight of the
Cherokee and broadcast a description of the vehicle to other officers. Cleveland police
detective Charles Davis (“Detective Davis”) observed the vehicle pass him on Rudyard
Road. He recognized the driver as Perry, whom he was familiar with from previous
encounters. Detective Davis did not recognize Perry’s male passenger.
{¶5} Detective Jeffrey Yasenchack (“Detective Yasenchack”) saw the Cherokee
turn down Nathaniel Road. Moments later, Detective Kopchak and Sergeant Durichko
found the abandoned Cherokee on Nathaniel Road. The occupants had left the engine
running and the doors open; bystanders directed the police toward where the men had run.
The officers located a prepaid cell phone near where the bystanders told police the two
men had jumped a fence.
{¶6} The officers recovered $481 in cash from the vehicle’s middle console, .8
grams of what was later identified as heroin and fentanyl from the driver’s side
floorboard, a receipt from AutoZone for jumper cables, and a set of jumper cables.
Steele testified that she did not leave any personal items in the car when she went to visit
her daughter, including drugs, money, or a cell phone. She denied ever visiting
AutoZone or purchasing jumper cables.
{¶7} Sergeant Durichko and Detective Yasenchack viewed surveillance video
from AutoZone and identified the purchaser of the jumper cables as Perry. Perry testified
that he had not been driving a Jeep Cherokee on the night in question. He denied
purchasing jumper cables at AutoZone and claimed the video showed a taller man who
had a different hairstyle.
{¶8} The trial court convicted Perry of all charges and sentenced him to six months
at a community based correctional facility with a total of 36 months of community control
and 180 days of electronic home monitoring.
{¶9} Perry now appeals and raises four assignments of error for our review.
I. Insufficient evidence supported either the trial court’s finding of guilt of
possession of drugs, of forfeiture of a phone and money, or that appellant
possessed criminal tools.
II. The manifest weight of the evidence did not support appellant’s
convictions for drug possession or possession of criminal tools.
III. Defense counsel was constitutionally ineffective for failing to object
to video identification of appellant at trial.
IV. The trial court erred in failing to merge drug possession charges as
allied offenses of similar import for sentencing.
{¶10} In the first and second assignments of error, Perry contends that his
convictions were supported by insufficient evidence and were against the manifest weight
of the evidence. Although the terms “sufficiency” and “weight” of the evidence are
“quantitatively and qualitatively different,” we address these issues together because
they are closely related, while applying the distinct standards of review. State v.
Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541 (1997).
{¶11} The test for sufficiency requires a determination of whether the prosecution
met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,
2009-Ohio-3598, ¶ 12. 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 proven beyond a reasonable doubt. State v. Jenks, 61
Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶12} In contrast to sufficiency, “weight of the evidence involves the inclination of
the greater amount of credible evidence.” Thompkins at 387. While “sufficiency of the
evidence is a test of adequacy as to whether the evidence is legally sufficient to support a
verdict as a matter of law, * * * weight of the evidence addresses the evidence’s effect of
inducing belief.” State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, 865 N.E.2d
1264, ¶ 25, citing Thompkins at 386-387. The reviewing court must consider all the
evidence in the record, the reasonable inferences, and the credibility of the witnesses to
determine “‘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.”’ Thompkins at 387, quoting State v. Martin, 20 Ohio App. 3d
172, 485 N.E.2d 717 (1st Dist.1983).
{¶13} Perry was convicted of possession of drugs and possessing criminal tools.
He contends that there was insufficient evidence that he possessed the drugs and that he
used the cell phone or money as criminal tools.
{¶14} R.C. 2925.11(A), which prohibits possession of drugs, states that “[n]o
person shall knowingly obtain, possess, or use a controlled substance.” Possession may
be proven by evidence of actual physical possession or constructive possession. State v.
Palmer, 8th Dist. Cuyahoga No. 58828, 1992 Ohio App. LEXIS 473, 5 (Feb. 6, 1992).
Constructive possession may be proven by circumstantial evidence alone, but dominion
and control may not be inferred solely from access to the substance through ownership or
occupation of the premises upon which the substance is found. State v. Soto, 8th Dist.
Cuyahoga No. 86390, 2006-Ohio-2319, ¶ 27, citing, in part, R.C. 2925.01(K).
{¶15} In this case, there was no evidence of actual possession, because Perry had
fled before the police arrived on scene, so his conviction stands only if there was evidence
of constructive possession. We find our decision in State v. Collins, 8th Dist. Cuyahoga
No. 87248, 2006-Ohio-4375, instructive.
{¶16} In Collins, the defendant sat in the passenger seat of a car that rolled through
a red traffic light. An officer activated his lights and siren and followed the vehicle
about one block before it pulled into a residential driveway. The driver and Collins exited
the vehicle and fled. During an inventory search of the vehicle, officers found crack
cocaine placed about six inches under the passenger seat where Collins had sat. A jury
found Collins guilty of one count of drug possession. This court upheld the conviction,
finding that Collins’s flight indicated constructive possession and consciousness that
drugs were in the car. This court reasoned that Collins’s flight, coupled with the
officer’s testimony that the placement of the drugs was consistent with where it would be
placed had the passenger reached down to put it there, showed sufficient circumstantial
evidence of possession of drugs. Id. at ¶ 6.
{¶17} In the case at bar, Detective Kopchak recognized Perry as the driver of the
Cherokee. Detective Yasenchack saw the Cherokee turn down Nathaniel Road;
moments later, Detective Kopchak and Sergeant Durichko found the Cherokee abandoned
on the same street. The engine was running and the doors were open, indicating an
abrupt departure from the vehicle.
{¶18} Police recovered .8 grams of heroin and fentanyl from where Perry had just
been sitting. The drugs had been placed in a torn out and folded page of the vehicle’s
user manual. Detective Kopchak testified that the pages to the Cherokee’s user manual
were torn out and that drug traffickers commonly use torn pages from car manuals to hold
drugs. Looking at the evidence in a light most favorable to the state, we find sufficient
evidence of possession of drugs.
{¶19} Perry also contends that there was insufficient evidence to show that he used
the money and cell phone as criminal tools. R.C. 2923.24(A) provides that “[n]o person
shall possess or have under the person’s control any substance, device, instrument, or
article, with purpose to use it criminally.”
{¶20} We disagree with Perry’s contention, based on the totality of the
circumstances and witness testimony. Detective Davis testified that “drug traffickers
commonly have, from my experience, money, cash on hand, and cell phones.” Detective
Kopchak testified that cell phones and money are considered “tools of the trade” for drug
traffickers and the presence of such a large sum of money in the center console of a car is
abnormal and suggested drug trafficking. The police recovered the cell phone near the
abandoned car and “right where the witnesses said that the two males jumped the fence.”
Detective Kopchak explained that he went to get a search warrant for the phone, but it
was a “burner” phone, which did not have a SIM card and is difficult to trace.
{¶21} We also find that the convictions were supported by the manifest weight of
the evidence. Perry insisted he was at his girlfriend’s house at the time of the incident
and the man in surveillance video was not him because that man was taller and had a
different hairstyle. Perry argues that the trial court improperly relied on police testimony
placing Perry in the Cherokee. The trial court, however, was in the best position to
weigh witnesses’ testimony. Based on the evidence in the record, which included the
heroin and fentanyl found in close proximity to where Perry had just been sitting, the
$481 in the car’s middle console, the burner phone located next to the fence Perry jumped
over after bailing from the stolen car, we cannot say that the trial court clearly lost its way
in convicting him.
{¶22} The first and second assignments of error are overruled.
{¶23} In the third assignment of error, Perry argues that he was afforded
ineffective assistance of counsel because his attorney did not object to the AutoZone
video being admitted into evidence.
{¶24} To establish ineffective assistance of counsel, an appellant must show “(1)
deficient performance of counsel, i.e., performance falling below an objective standard of
reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for
counsel’s errors, the proceeding’s result would have been different.” State v. Hale, 119
Ohio St. 3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland v.
Washington, 466 U.S. 668, 687-688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” State v. Sanders, 94 Ohio St. 3d 150, 151, 2002-Ohio-350, 761 N.E.2d 18.
{¶25} From the onset, defense counsel used the AutoZone security video as part of
trial strategy by arguing that the video exonerated Perry because the man in the video did
not look like Perry. Now Perry claims that his counsel was ineffective for failing to object
to the video because its admission allowed the detectives to improperly opine that the man
in the video was Perry. We disagree.
{¶26} The trial court, as trier of fact in this case, was able to view the surveillance
video for itself and determine whether Perry was the man in the video purchasing the
jumper cables. See State v. Littlejohn, 8th Dist. Cuyahoga No. 101549, 2015-Ohio-875,
¶ 33 (jury was able to view the surveillance video and the defendant in court and
determine for itself whether the defendant was one of the men shown in the video stealing
from the gas station).
{¶27} Finally, we are reminded that in evaluating a claim of ineffective assistance
of counsel, there is a strong presumption that counsel’s conduct in question fell within a
wide range of reasonable professional assistance. State v. Singleton, 8th Dist. Cuyahoga
No. 98301, 2013-Ohio-1440, ¶ 67. As a result, trial tactics and strategies do not
constitute a denial of effective assistance of counsel. State v. Clayton, 62 Ohio St. 2d 45,
48, 402 N.E.2d 1189 (1980), citing People v. Miller, 7 Cal. 3d 562, 102 Cal. Rptr. 841,
498 P.2d 1089 (1972); State v. Gooden, 8th Dist. Cuyahoga No. 88174, 2007-Ohio-2371.
Defense counsel, most likely assuming he would not be able to keep the video from
being admitted, probably decided his best strategy was to argue from the beginning of
trial that the police had the wrong suspect because Perry did not resemble the man in the
surveillance video.
{¶28} In light of the above, we cannot say that Perry received ineffective
assistance of counsel. The third assignment of error is overruled.
{¶29} In the fourth assignment of error, Perry claims that the trial court erred by
failing to merge his convictions for possession of heroin and possession of fentanyl.
{¶30} We review a trial court’s determination on merger de novo. State v.
Williams, 134 Ohio St. 3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
{¶31} Pursuant to R.C. 2941.25, Ohio’s multiple-count statute, the imposition of
multiple punishments for the same criminal conduct is prohibited. State v. Hilliard, 8th
Dist. Cuyahoga No. 102214, 2015-Ohio-3142, ¶ 11. R.C. 2941.25 states:
(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be
convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶32} This court has previously held that the simultaneous possession of two types
of drugs constitutes two separate offenses that do not merge as allied offenses of similar
import under R.C. 2925.11. State v. Santiago, 8th Dist. Cuyahoga No. 101601,
2015-Ohio-1300, ¶ 12. In Santiago, this court found that the defendant’s simultaneous
possession of heroin and cocaine, each recognized as a separate offense under R.C.
2925.11, did not constitute allied offenses of similar import. Id. This court cited to
State v. Heflin, 6th Dist. Lucas No. L-11-113, 2012-Ohio-3988, where the defendant kept
two different drugs, cocaine and heroin, in a single plastic bag. The Heflin court held
that convictions for simultaneous possession of cocaine and heroin are not subject to
merger as allied offenses of similar import under R.C. 2941.25 because ‘“possession of
different drug groups constitutes different offenses under R.C. 2925.11’” and the
“‘possession of either cocaine or heroin will never support a conviction for possession of
the other.’” Santiago at ¶ 11, quoting Heflin at ¶ 14.
{¶33} More recently, in State v. Woodard, 12th Dist. Warren No. CA2016-09-084,
2017-Ohio-6941, ¶ 35, the court found that “the possession of heroin or fentanyl will
never support a conviction for possession of the other. The fact that the two controlled
substances were found in the same baggie is of no consequence.” The court reasoned
that “[e]ach possession offense required proof as to the specific drug involved and could
not be supported by possession of a different controlled substance.”1
{¶34} We agree with the Woodard court. Here, the trial court found that Perry
knowingly possessed two separate controlled substances and, pursuant to the allied
offense framework set forth in R.C. 2941.25, the offenses of possession of heroin and
possession of fentanyl do not merge. See Woodard at ¶ 35, fn. 2.
{¶35} The fourth assignment of error is overruled.
{¶36} Judgment affirmed.
It is ordered that appellee recover of appellant 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
1
The dissent in Woodard disagreed and would have merged the convictions because the
defendant possessed a single bag of drugs, there was no evidence the defendant knew the bag of drugs
contained both heroin and fentanyl, and “[w]ithout the help of science and technology, it is not clear if
a person could distinguish that the bag contained both heroin and fentanyl.” Id. at ¶ 44 (Ringland,
J., dissenting).
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
TIM McCORMACK, P.J., CONCURS;
EILEEN T. GALLAGHER, J., CONCURS
IN JUDGMENT ONLY