STATE OF OHIO v. MARTIN FORTE
No. 99573
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 21, 2013
[Cite as State v. Forte, 2013-Ohio-5126.]
Stewart, A.J., Blackmon, J., and McCormack, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-561476
RELEASED AND JOURNALIZED: November 21, 2013
Rick L. Ferrara
2077 East 4th Street, Second Floor
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mary Weston
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
{¶1} Police officers executing a search warrant in a residence discovered defendant-appellant Martin Forte in a bedroom, seated at a table. When he saw the police, Forte dropped a plastic bag containing a large amount of crack cocaine. In front of him on the table was a plate with cocaine residue, a razor blade, and scalе. Plastic baggies were found on a nearby dresser. The state charged Forte with drug possession, drug trafficking, and possession of criminal tools. A jury found him guilty on all counts. In this appeal, he complains that (1) the state failed to prove venue, (2) that there was insufficient evidence to prove drug trafficking, and (3) that defense counsel was ineffective because he allowed a police officer to testify to hearsay statements in a police report. We find no error and affirm.
I
{¶2} Forte first argues that the state failed to offer any evidence of venue because none of the witnesses testified to the location of the crimes.
{¶3}
{¶4} Although venue is a factual issue that must be proved beyond a reasonable doubt, State v. Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983), like other facts, it may be proved circumstantially. State v. Mason, 8th Dist. Cuyahoga No. 78606, 2001 Ohio App. LEXIS 3019 (July 5, 2001); State v. Sudderth, 9th Dist. Summit No. 24448, 2009-Ohio-3363, ¶ 8. When testimony establishes a specific location without giving the name of the cоunty, the court may take judicial notice that a location is in a particular county. State v. Combs, 7th Dist. Jefferson No. 97-JE-65, 1999 Ohio App. LEXIS 5333 (Nov. 15, 1999); Linndale v. Krill, 8th Dist. Cuyahoga No. 81881, 2003-Ohio-1535, ¶ 8.
{¶5} The police executed the warrant at an address located at 2581 W. 5th Street in the city of Cleveland. The officers collectively testified that they were employed by the city and were assigned to the “Second District.” In addition, the search warrant inventory sheet admitted into evidence listed the address as being located in “Cleveland.” This evidence was sufficient circumstantiаl evidence to show that the offense occurred in Cuyahoga County.
II
{¶6} Forte next argues that the state failed to present sufficient evidence that he trafficked in drugs. He argues that the state failed to show that he lived at the house where the drugs were found or that he assisted in preparing the drugs for sale.
{¶7} We decide whether the evidence is sufficient to sustain a verdict by examining the evidence in the light most favorable to the prosecution and determining whether any rational trier of fact could hаve found that the prosecution proved the essential elements of the crime beyond a reasonable doubt. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 78, quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶9} The evidence showed that the pоlice executed a series of controlled drug buys from a person known as “B.” The drug buys occurred at a house owned by “B,” so the police obtained a search warrant for the house. When they executed the search warrant, they found a malе and young girl in the living room. When told that another person was present in the master bedroom, the police acted to secure the premises. The police quietly entered the bedroom and saw Forte sitting at a table, bent over with his hands on the tаble. When Forte saw the police, he dropped a plastic bag containing nearly 24 grams of crack cocaine. In front of him on the table was a small bag of crack cocaine, a scale, a plate with what that the police thought was crack cocaine residue, a razor blade, and $130 in currency. On top of a dresser in the bedroom was a second scale and box of small plastic bags. A search of Forte uncovered an additional $344. The police testified
{¶10} Although the state had no direct evidence of Forte trafficking drugs, the circumstantial evidence of drug trafficking was compelling. “[N]umerous courts have determined that items such as plastic baggies, digital scales, and large sums of money are often used in drug trafficking and may constitute circumstantial evidence of conduct proscribed by
{¶11} Forte notes that the bedroom he occupied had been rented to the original target of the investigation, “B,” so it was more likely that “B” was the true drug trafficker and Forte merely a “recreational” user. This argument ignores the circumstances detаiled above — the large quantity of crack cocaine, the large quantity of currency, the plate with cocaine residue, a scale, a razor that would be used to slice smaller rocks from the large rock, and plastic baggies that сould be used to package the crack cocaine. Regardless of whether Forte was the initial target of the police investigation, his being seated at a table
{¶12} Forte also argues that his conviction was against the manifest weight of the evidence, but offers nothing more than the reincorporation of the argument that he made concerning the sufficiency оf the evidence for drug trafficking. “A claim that a jury verdict is against the manifest weight of the evidence involves a separate and distinct test that is much broader [than the test for sufficiency].” State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193. We have consistently held that the App.R. 16(A)(7) obligation to present аn argument with respect to each assignment of error presented for review does not allow an appellant to “incorporate” an argument about the weight of the evidence into an earlier argument that a conviction is not supported by sufficient evidence. See, e.g., State v. Milligan, 8th Dist. Cuyahoga No. 98140, 2012-Ohio-5736, ¶ 6. To allow otherwise would be to ignore the separate and distinct nature of arguments going to the sufficiency and weight of the evidence. We therefore summarily dispose of this assigned error.
III
{¶13} During the cross-еxamination of the police detective who participated in the execution of the search warrant and witnessed Forte drop the bag of crack cocaine, defense counsel pursued a line of questioning on whether Fortе was discovered “cutting” the crack cocaine when the police executed the warrant. The detective said that Forte was not cutting the crack cocaine, so defense counsel asked him to explain a police report
{¶14} In order to establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate that counsel‘s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). In the context of what is considered “deficient,” it means that counsel‘s performance fell below an objective standard of reasonableness. Strickland at 688. We presume counsel is competent, id. at 689, so a deficient performance encompasses “omissions [that] cannot be explained convincingly as resulting from a sound trial strategy, but instead [arise] from oversight, carelessness, ineptitude, or laziness * * *.” Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir.2003).
{¶15} Forte had no real defense against thе possession count in light of the testimony that he dropped a bag of crack cocaine as the police entered the bedroom, so the defense appeared to focus on the trafficking count. Forte argued that the person known to the police as “B” was the suspected trafficker, and that Forte had been in
{¶16} The difficulty for the defense was the presence of a scale and razor blade on the table where Forte was sitting at the time of his arrest. The 24-gram rock of crack coсaine far exceeded the standard “rock” dose (trial testimony showed there are seven to eight rocks in a gram), so Forte‘s presence at the table with a scale and razor in front of him suggested that he was cutting the crack cocainе. Admittedly, the detective did not testify that Forte was cutting the crack cocaine. However, defense counsel knew that the lead detective would be testifying (he was sitting at the defense table throughout trial), and the lead detective‘s report did statе that Forte had been seen cutting the crack cocaine. Defense counsel thus had two bases for mentioning the report: first, to note the inconsistency between the versions told by the two detectives; second, to prove that Forte was not actually seen cutting the crack cocaine. Defense counsel succeeded on both points — the detective who actually saw Forte during the execution of the search warrant firmly said that he did not see Forte cutting the crack cocaine and the lead detective was forced to concede that his report wrongly inferred from the other detective that Forte was cutting the crack cocaine.
{¶17} Forte concedes that defense counsel‘s question wаs a “victory,” although he calls it a “pyrrhic” one. Appellant‘s brief at 16. By definition, a victory can only be pyrrhic in hindsight, as what appears to be a victory is one that comes at a great cost, the
{¶18} Judgment affirmed.
It is ordеred 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.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
PATRICIA ANN BLACKMON, J., and TIM McCORMACK, J., CONCUR