STATE OF OHIO v. ANDERSON BAIRD
No. 96352
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 8, 2011
[Cite as State v. Baird, 2011-Ohio-6268.]
BEFORE: Cooney, J., Kilbane, A.J., and Sweeney, J.
JOURNAL ENTRY AND OPINION; RELEASED AND JOURNALIZED: December 8, 2011
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-542662
Michael J. Gordillo
1370 Ontario Street
2000 Standard Building
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: John Wojton
Brian D. Kraft
Assistant County Prosecutors
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{¶ 1} Defendant-appellant, Anderson Baird (“Baird“), appeals his drug trafficking, possession of criminal tools, and tampering with evidence convictions. Finding no merit to the appeal, we affirm.
{¶ 3} The following evidence was adduced at trial. On the evening of September 29, 2010, a confidential informant (“CI“) engaged in a buy-bust operation for the Cleveland police. The CI struck up a conversation with two men standing together in the parking lot of a beverage store, at the intersection of St. Clair Avenue and East 166th Street. Officers testified that the lot was well lit and filled with between five and ten other cars. One of the two men, later identified as Hemphill, motioned for the CI to join him around the side of the building. Hemphill and the CI then had a hand-to-hand exchange. The CI returned to the undercover car she arrived in and gave the detective the marijuana she purchased from Hemphill.
{¶ 4} The second man, later identified as Baird, did not accompany Hemphill and the CI around the side of the building. Instead, Baird approached and entered the front passenger seat of a Camaro, parked in the lot. Baird remained inside the car for a brief time and then exited. Detectives did not witness what happened insidе the vehicle. Baird exited the
{¶ 5} Officers were given the go-ahead to pursue the Cadillac. As they followed the Cadillac and activated their lights and siren, Detective Gerald Crayton observed a passenger throw items out the window.
{¶ 6} Once the vehicle was stopped, officers identified Hemphill as the driver and Baird as the passenger. A female passenger was sitting in the back seat behind the driver. The officers searched for the items thrown from the vehicle by the passenger and located the $20 bill used by the CI to purchase the drugs as well as six small baggies of marijuana cоntained in one larger bag on the street behind the Cadillac, directly in line with the passenger side of the vehicle.
{¶ 7} As officers approached the vehicle, they observed Baird making furtive movements toward his waist. After apprehending Baird, police discovered a bag of marijuana containing 16 grams in his waistband. Officers also recovered $128 on his person. In addition, a small scale designed tо resemble a cell phone was found in the glove box of the Cadillac.
{¶ 8} Baird testified in his own defense. He claimed that he and Hemphill had gone to the store to purchase beverages and that Hemphill never exited the Cadillac. He testified
{¶ 9} The jury found Baird guilty of all charges, and he was sentenced to 18 months in prison.
{¶ 10} Baird now appeals, raising four assignments of error, which shall be addressеd out of order where appropriate.
Sufficiency and Manifest Weight
{¶ 11} In his first assignment of error, Baird argues that the trial court erred in denying his motion for acquittal due to insufficient evidence to support the charges. In his second assignment of error, Baird argues that his convictions are against the manifest weight of the evidence. These two assignments are related to the same set of facts and will therefore be discussed together.
{¶ 12} We review a challenge based on the denial of a motion for acquittal in the same manner as a challenge based upon the sufficiency of the evidence, because a motion for judgment of acquittal under
{¶ 13} In State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶113, the Ohio Supreme Court explained the standard for sufficiency of the evidence:
{¶ 14} “Raising the question of whether the evidence is legally sufficient to support the jury verdict as a matter of law invokes a due process concern. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. In reviewing such a challenge, ‘[t]he 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 (1991), 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.”
{¶ 15} In a sufficiency exercise, however, this court does not make determinations of credibility. Rather, the court decides, based on the evidence presented if believed, whether any rational trier of fact could have found the defendant guilty of the crimes charged.
{¶ 16} Although the test for sufficiency requires a determination of whether the prosecution has met its burden of production at trial, a manifest weight challenge questions whether the prоsecution has met its burden of persuasion. Thompkins at 390. When considering a manifest weight claim, a reviewing court must examine the entire record, weigh the evidence, and consider the credibility of witnesses. State v. Thomas (1982), 70 Ohio St.2d 79, 80, 434 N.E.2d 1356. The court may reverse the judgment of conviction if it appears that the factfinder “‘clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed аnd a new trial ordered.‘” Thompkins at 387, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. A judgment should be reversed as against the manifest weight of the evidence “only in the exceptional case in which the evidence weighs heavily against the conviction.” Thompkins at 387.
{¶ 17} Baird was convicted of possessing criminal tools in violation of
{¶ 18}
{¶ 20} Baird admitted carrying $128 in cash but denied that this was a large sum of money. He also admitted possessing the 16 grams of marijuana on his person but argued that it was for personal use. It is clear that Baird had access to the scale found in the glove box, as he was seated directly in front of it in the front passenger seat. The six small baggies of mаrijuana that were thrown from the passenger side of the car were clearly prepared in anticipation of selling them, as they were similarly packaged and identical in size/weight. Baird argues that he was unaware that the scale was there, and denied any involvement in dealing drugs. However, the circumstantial evidence gives rise to the possibility that, based on the other items found in Baird‘s possession, he could have known about the scale.
{¶ 21} Next, Baird was also convicted of tampering with evidence, pursuant to
“No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following:
“Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation[.] * * *”
{¶ 22} Baird denies that he threw the six baggies of marijuana and the $20 bill out the window while being pursued by police. He claims that perhaps it was the female passenger. He also argues that it makes little sense that he would throw the baggies and $20 bill out the window but keep the remaining 16 grams of marijuana in his waistband. However, the State argues that this makes perfect sense because Baird knew the difference between being caught merely possessing marijuana versus being apprehended with evidence connected to actual drug trafficking.
{¶ 23} In addition, Officer Bryan Charney who was on the scene when the Cadillac was stopped, testified that when he approached the driver‘s side of the vehicle, he saw a female passenger seatеd in the back seat behind the driver. The six baggies and the $20 bill, however, were thrown from the opposite side of the vehicle. Although the evidence tying Baird to throwing the items out the window is circumstantial, we note that the jury is instructed to view circumstantial evidence as having the same probative value as direct evidence. Jenks.
{¶ 25} “No person shall knowingly do any of the following:
“(1) Sell or offer to sell a controlled substance;
“(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe that the controlled substance is intended for sale or resale by the offender or another person.”
{¶ 26} Baird argues that there is no evidence to support a conviction for trafficking. The State argues that Baird‘s conviction pursuаnt to
{¶ 27} Detective Charles Davis (“Davis“), one of the officers who witnessed Baird getting into and out of the Cаmaro, testified that in his experience in buy-bust operations, getting in and out of a car so quickly was common for drug sales. He testified that he has participated in many buy-bust operations in that parking lot, and that drug sales tend to happen quickly, with the dealer getting into the buyer‘s car and then exiting quickly. Detective
{¶ 28} Baird testified that the driver of the Camaro was a friend of his for whom Baird had purchased a beer and that he was delivering it to him. However, neither McCully nor Davis saw Baird enter the beverage store at any time, nor did they observe him carrying any sort of beverage prior to getting into the Camaro.
{¶ 29} Moreover, Sergeant James Purcell (“Purcell“) was the officer who stopped the Camaro after it left the parking lot. The driver was found to have one small bag of marijuana on his person. Purcell did not testify to finding any alcoholic beverages inside the vehicle.
{¶ 30} “In reaching its verdict, the jury is free to believe all, part, or none of the testimony of each witness.” State v. Jackson (1993), 86 Ohio App.3d 29, 33, 619 N.E.2d 1135. Furthermore, “[t]he weight to be given the evidence and the credibility of the witness[es] are primarily for the trier of the facts.” State v. Richey (1992), 64 Ohio St.3d 353, 363, 595 N.E.2d 915.
{¶ 31} After viewing the evidence in a light most favorable to the prosecution, we find sufficient evidence to establish, beyond a reasonable doubt, that Baird is guilty of drug trafficking, possession of criminal tools, and tampering with evidence. Moreover, based on the aforementioned facts and circumstances, we find that the convictions are not against the
{¶ 32} Accordingly, Baird‘s first and second assignments of error are overruled.
Joinder
{¶ 33} In his fourth assignment of error, Baird argues that the trial court abused its discretion by failing to sever Baird‘s trial from his codefendant.
{¶ 34} Defendants may be charged in the same indictment, pursuant to
{¶ 35} “Two or more defendants may be charged in the same indictment, information or complaint if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses, or in the same course of criminal conduct. Such defendants may be charged in one or more counts together or separately, and all of the defеndants need not be charged in each count.”
{¶ 36} The law favors the joinder of defendants and the avoidance of multiple trials because joinder conserves judicial and prosecutorial time, lessens the expenses of multiple trials, diminishes the inconvenience to witnesses, and minimizes the possibility of incongruous results from successive trials before different juries. State v. Thomas (1980), 61 Ohio St.2d 223, 400 N.E.2d 401.
{¶ 38} However, a party waives any claim of error by failing to raise an objection to the joinder. In addition, in State v. Owens (1975), 51 Ohio App.2d 132, 366 N.E.2d 1367, paragraph two of the syllabus, the court held that:
{¶ 39} “[a] motion for severance due to prejudicial misjoinder under rules of procedure for relief from prejudicial misjoinder must be renewed at the close of the state‘s case or at the conclusion of all the evidence and unless made at that time, it is waived.” (Emphasis added.)
{¶ 40} See, also,
{¶ 41} In the instant case, Baird‘s trial counsel did not object to the joinder, nor did he file a motion to sever the case at any stage of the proceedings; therefore, the claimed error was waived. Baird argues, in the alternative, that if the severance of his trial was waived, his conviction should be reversed because plain error exists.
{¶ 43} Although Baird complains that he was prejudiced due to his association with Hemphill, Baird has failed to show that the jury was unable to separate the two defendants. Merely beсause alleged inflammatory evidence is admitted against one defendant not directly involving another codefendant, does not in and of itself show substantial prejudice in the latter‘s trial. See United States v. Gallo (C.A.6, 1985), 763 F.2d 1504. Further, a jury must be presumed capable of sorting out the evidence submitted at trial and considering the case of each defendant separately. See United States v. Causey (C.A.6, 1987), 834 F.2d 1277.
{¶ 44} Given the totality of the evidence against Baird, as discussed in the first and second assignments of error, we cannot say that the jury concluded Baird was merely guilty by association. The jury‘s reliance on the evidence and testimony regarding Baird‘s charges was sufficient to sustain his convictions. Thus, we find no error in the joinder of the two for trial.
{¶ 45} Accordingly, Baird‘s fourth assignment of error is overruled.
Ineffective Assistance of Counsel
{¶ 47} To reverse a conviction for ineffective assistance of counsel, the defendant must prove “(1) that counsel‘s performance fell below an objective standard of reasonableness, and (2) that counsel‘s deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.” State v. Madrigal, 87 Ohio St.3d 378, 388-389, 2000-Ohio-448, 721 N.E.2d 52, citing Strickland v. Washington (1984), 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674.
{¶ 48} As tо the second element of the test, the defendant must establish “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 (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus; Strickland at 686. In evaluating whether a petitioner has been denied effective assistance of counsel, the Ohio Supreme Court held that the test is “whether the accused, under all the circumstances, had a fair triаl and substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d 71, 341 N.E.2d 304, paragraph four of the syllabus.
{¶ 49} This court must presume that a licensed attorney is competent and that the challenged action is the product of sound trial strategy and falls within the wide range of professional assistance. Strickland at 689. Courts must generally refrain from
{¶ 50} First, Baird argues that his trial counsel was ineffective for failing to file a motion to suppress evidence. Baird claims that the police stop of the Cadillac was unjustified. He also argues that a motion to suppress should have been filed regarding the six small baggies and the $20 bill thrown from the car.
{¶ 51} However, Baird fails to provide any reasoning, analysis, or legal authority to support his аrgument. Pursuant to
{¶ 52} Next, Baird argues that his trial counsel was ineffective for failing to file a motion to sever his trial from that of his codefendant, Hemphill. Having found in the fourth assignment of error that the joinder of the two cases was not error, it follows that counsel‘s failure to file a motion to sever does not rise to the level of ineffective assistance of counsel.
{¶ 54} After a thorough review of the record, we find that Baird has not established ineffective assistance of counsel. The record does not indicate that defense counsel failed in his essential duties or that his performance fell below an objective standard of reasonableness.
{¶ 55} Accordingly, the third assignment of error is overruled.
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 for execution of sentence.
COLLEEN CONWAY COONEY, JUDGE
MARY EILEEN KILBANE, A.J., and JAMES J. SWEENEY, J., CONCUR
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