State v. BroughtonState v. Broughton
{¶ 1} Appellant Ronald Broughton appeals his conviction for drug possession. After a thorough review of the record and the arguments of the parties, for the reasons set forth below, we affirm.
{¶ 2} On July 14, 2005, the Cuyahoga County Grand Jury returned an indictment against appellant on one count of drug possession, in violation of
{¶ 3} The incident that gave rise to appellant‘s conviction took place on May 19, 2005 in an area of Cleveland well known for its numerous complaints of drug activity. While patrolling St. Clair Avenue, two Cleveland police officers, Officer Michael Benz and Officer Robert Sauterer, noticed a stopped car impeding the flow of traffic on East 95th Street, a narrow one-way street. Beside the driver‘s door, the officers could see a man leaning in the driver‘s side window. The officers reversed their direction on St. Clair and turned north on East 95th Street, heading the wrong way up the street. Upon seeing the police car approaching, the man leaning in the car window turned and fled up the street and through adjacent neighborhood yards. The driver remained in the stopped car.
{¶ 4} The police officers approached the car and noticed the windshield was cracked. Officer Benz asked the driver for his driver‘s license. Appellant, the sole
{¶ 5} Three independent tests were performed by Scott Miller of the Cleveland police department‘s forensic laboratory to determine what, if any, substance was in the pipe. Miller testified that all three tests showed that residue in the glass crack pipe amounted to less than five grams of cocaine.
{¶ 6} At trial, after both the prosecution and defense rested, defense counsel requested that the trial court instruct the jury on the charge of possession of drug paraphernalia, under
{¶ 7} Appellant brings this appeal asserting three assignments of error for our review. For ease of discussion, we will address appellant‘s assignments of error out of order.
Ineffective Assistance of Counsel
{¶ 8} “Assignment of Error III: Ronald Broughton‘s counsel was ineffective by neglecting to motion the court to suppress evidence.”
{¶ 9} Appellant argues that his attorney‘s failure to file a motion to suppress evidence the police found in his car constitutes ineffective assistance of counsel. Specifically, appellant argues that his attorney should have filed a motion to suppress the crack pipe the police officers found because their search of his car was unlawful. Without the evidence from the search, appellant‘s conviction could not stand. We find appellant‘s argument without merit.
{¶ 10} 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.
{¶ 11} In State v. Bradley (1989), 42 Ohio St.3d 136, the Supreme Court of Ohio followed the Strickland Court with regard to the issue of ineffective assistance of counsel, holding 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
{¶ 12} “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. 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
{¶ 13} “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.
{¶ 14} Appellant‘s argument fails the first prong of the Strickland test. Trial counsel‘s representation of appellant was not deficient because filing a motion to suppress under the present circumstances would have been futile. The officers did not violate appellant‘s constitutional rights under the
{¶ 15} The scope of our review regarding a motion to suppress was set forth by this court in State v. Curry (1994), 95 Ohio App.3d 93, 96. In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility. State v. Clay (1973), 34 Ohio St.2d 250, 63 Ohio Op.2d 391, 298 N.E.2d 137. A reviewing court is bound to accept those findings of fact if supported by competent, credible evidence. See State v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54. However, without
{¶ 16} Recovering appellant‘s crack pipe from his car was lawful. When Officers Benz and Sauterer first noticed appellant‘s car, the car was stopped in the middle of the road, blocking traffic on East 95th Street. As the officers approached the car, they noticed appellant‘s windshield was cracked. This situation warranted the officers issuing traffic citations to appellant. When the officers asked appellant for his driver‘s license, he did not have it, and the officers discovered his license had been suspended. Therefore, the officers placed appellant under arrest, handcuffed him, put him in the back of the zone car, and proceeded to inventory appellant‘s car before having it towed.
{¶ 17} An inventory search of a car is lawful when police order the vehicle to be towed. An inventory search of a lawfully impounded vehicle is a well-defined
{¶ 18} Officers Benz and Sauterer did not violate appellant‘s
Sufficiency of the Evidence
{¶ 19} “Assignment of Error II: The evidence was insufficient to convict defendant.”
{¶ 20} Appellant argues that the evidence at trial was insufficient to support a guilty verdict. The standard of review regarding the sufficiency of evidence is set forth in State v. Jenks (1991), 61 Ohio St. 3d 259. The Jenks court held that “[a]n
{¶ 21} Having overruled appellant‘s claim of ineffective assistance of counsel, we find that his claim of insufficient evidence fails. The testimony of the police officers about the crack pipe, along with Scott Miller‘s forensic testimony regarding the cocaine residue in the pipe, could lead a trier of fact to find all elements of the charge of drug possession proven beyond a reasonable doubt. It is not for this court to overturn a jury verdict when there is sufficient evidence to support a guilty verdict; therefore, we overrule appellant‘s second assignment of error.
Jury Instructions
{¶ 22} “Assignment of Error I: The court erred in refusing to charge the jury with possession of drug paraphernalia or drug abuse instrument.”
{¶ 23} Appellant argues that the trial court erred when it refused to instruct the jury on the charge of possession of drug paraphernalia, a lesser included offense, rather than on the one it charged the jury with, possession of drugs. In further
{¶ 24} Under
{¶ 25} Possession of drug paraphernalia is not a lesser included offense of possession of drugs, and this court‘s ruling in State v. Smith (July 6, 2000), Cuyahoga App. No. 76501, applies. In facts similar to those in this case, the Smith court held that the appellant was not entitled to a separate jury instruction for possession of drug paraphernalia when he possessed a crack pipe with cocaine residue. The court, holding that these two offenses are not allied offenses of similar import under Newark v. Vazirini (1990), 48 Ohio St.3d 81, affirmed the trial court‘s jury instruction on possession of drugs, not on possession of drug paraphernalia.
{¶ 26} In the case before us, the trial court heard appellant‘s argument regarding the requested jury instruction and denied it. It found that the facts and
{¶ 27} Judgment is hereby affirmed.
It is ordered that appellee recover from 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, J., and PATRICIA ANN BLACKMON, J., CONCUR