{¶ 2} On October 1, 2007, appellant filed a motion to suppress, claiming an illegal stop and search. A hearing was held on October 16, 2007. By judgment entry filed November 7, 2007, the trial court denied the motion.
{¶ 3} A jury trial commenced on January 3, 2008. The jury found appellant guilty as charged. By judgment entry filed January 11, 2008, the trial court sentenced appellant to an aggregate term of five years in prison.
{¶ 4} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
{¶ 11} There are three methods of challenging on appeal a trial court's ruling on a motion to suppress. First, an appellant may challenge the trial court's findings of fact. In reviewing a challenge of this nature, an appellate court must determine whether said findings of fact are against the manifest weight of the evidence. State v.Fanning (1982),
{¶ 12} Appellant argues the trial court erred in finding the stop of his vehicle was an investigative stop. We have reviewed this exact issue relative to the stop and search of the vehicle in the co-defendant's case, State v. Nathaniel Walker, Stark App. No. 2007CA00350,
{¶ 13} "Canton City Police Officer Mark Diels testified he observed a vehicle stopped in the middle of the roadway obstructing the flow of traffic. T. at 10-11, 21-22. Several individuals were standing on both sides of the vehicle. T. at 9. When his cruiser approached the vehicle, the people scattered and the `vehicle immediately took off.' T. at 10. The vehicle first signaled left, then the signal went off, and the vehicle went to another intersection and turned left. Id. The vehicle then turned left again. T. at 10-11. The area was a high drug area, and it was 3:44 a.m.
{¶ 14} "Officer Diels stopped the vehicle. Upon approaching the vehicle, he recognized the driver, Jamal Anthony Smith, as someone he had stopped approximately four to five years prior and Mr. Smith had fled from him. T. at 12. Because of this fact, he had Mr. Anthony [Smith] exit the vehicle and he was placed in the police cruiser. T. at 13. Commensurate with these facts, Officer Diels noted the *5 passenger, appellant herein, was moving around inside the vehicle in an attempt to conceal something. T. at 12. Officer Diels asked Mr. Smith if he could search his vehicle, and Mr. Smith consented. T. at 13. Because of appellant's furtive movements, Officer Diels and Officer Thomas Hastings asked appellant to exit the vehicle. T. at 15.
{¶ 15} "The actions involving the vehicle in this case taken individually may not rise to the level of reasonable suspicion. However, when the time of night is way past the time for neighborly discourse in the street, the area is known as a high drug area, the actions of the individuals standing outside the vehicle were consistent with drug buys, the flight of the individuals and the vehicle upon the approach of the police cruiser, coupled with a de minimus traffic offense, we find there existed reasonable articulable facts to stop the vehicle. Once stopped, the officers' knowledge and the observations of furtive movements by appellant pass muster for the search of the vehicle, which in fact permission for the search had been granted by Mr. Smith."
{¶ 16} Based upon our decision in the Walker case, we find the trial court did not err in denying appellant's motion to suppress.
{¶ 17} Assignment of Error I is denied.
{¶ 19} On review for sufficiency, a reviewing court is to examine the evidence at trial to determine whether such evidence, if believed, would support a conviction. State v. Jenks (1991),
{¶ 20} Appellant was convicted of two counts of possession of cocaine in violation of R.C.
{¶ 21} Appellant argues the evidence failed to establish that he had physical possession of the cocaine. Appellant argues his co-defendant was convicted of two counts of possession of cocaine, and the drugs seized were between the passenger seat where Mr. Walker was seated and the middle console of the vehicle.
{¶ 22} Appellant was charged with possession of cocaine or aiding and abetting another in the possession of cocaine. See, Indictment filed September 14, 2007. The terms "aid and abet," have been construed by courts to mean "to assist or facilitate the commission of a crime, or to promote its accomplishment." State v. Johnson,
{¶ 23} Officer Diels observed a vehicle parked in the middle of the street in a high drug area. T. at 108-109. The actions and/or activities of the driver, passenger, and those standing outside the vehicle were consistent with drug activity. T. at 109-110. Appellant was the driver of the vehicle. T. at 126. After stopping the vehicle, Officer Diels observed furtive movements by the passenger, Mr. Walker. T. at 113. The amount of drugs seized and the packaging of the drugs were consistent with being packaged for sale and not for personal consumption. T. at 116, 125.
{¶ 24} Upon review, we find sufficient circumstantial evidence that appellant possessed cocaine or as the driver aided and abetted Mr. Walker in the possession of cocaine, and no manifest miscarriage of justice.
{¶ 25} Assignment of Error II is denied.
{¶ 27} The admission or exclusion of evidence lies in the trial court's sound discretion. State v. Sage (1987),
{¶ 28} "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio. Evidence which is not relevant is not admissible."
{¶ 29} Appellant argues the trial court improperly permitted the state to introduce evidence of his 2002 conviction for possession of cocaine, and testimony that he had fled from the police during the incident.
{¶ 30} Officer Diels testified after stopping the vehicle, he recognized the driver as appellant because he had had a previous encounter with him:
{¶ 31} "Q. And specifically can you tell us how you were familiar with him?
{¶ 32} "A. Approximately five years ago I had stopped Mr. Smith on a traffic stop, license plates I believe were expired. As I start to run his plates and his license, Mr. Smith took off from me in his vehicle and a vehicle pursuit ensued. He crashed his vehicle and fled from us. And upon apprehending him we found several baggies of crack cocaine and powder cocaine." T. at 126.
{¶ 33} No objections were made to this testimony. An error not raised in the trial court must be plain error for an appellate court to reverse. State v. Long (1978),
{¶ 34} On cross-examination, the issue was once again raised. T. at 142-143. When defense counsel asked Officer Diels his purpose for asking appellant to step out of his vehicle, Officer Diels explained he asked appellant to step out of the vehicle because of his previous encounter with appellant. Id. During closing arguments, defense counsel used this previous encounter to establish a motive of revenge:
{¶ 35} "Now, while they are in the car, and once the officers come to the car, then you will have the opportunity to hear them all talking feely among themselves. Diels is continuing on with his exchange with Jamel about this. Well, you remember me back a while ago that accident, that chase, when you run into the fence. Yeah. These guys know one another. And I believe that's why Diels has come to this conclusion well, I have got him once and I have got him again. By God, we are going to see what we can do this time. That's not justice. That's revenge."
{¶ 36} Clearly appellant used the previous encounter in his defense.
{¶ 37} Upon review, we find no plain error in the admission of the complained of testimony. We further find the complained of testimony was relevant as an explanation of Officer Diels's actions.
{¶ 38} Assignment of Error III is denied.
{¶ 40} The test for prosecutorial misconduct is whether the prosecutor's comments and remarks were improper and if so, whether those comments and remarks prejudicially affected the substantial rights of the accused. State v. Lott (1990), *10
{¶ 41} Appellant argues misconduct because of the prosecutor's comments regarding the previous encounter with Officer Diels (Assignment of Error III), and the prosecutor's questions about the amount of the drugs found in appellant's vehicle and how they were packaged (for sale versus personal consumption). Appellant argues the implication was that he was involved in drug trafficking.
{¶ 42} As is obvious from defense counsel's questioning as well as his closing argument, appellant's defense was that the drugs were not his but Mr. Walker's. Because the drugs seized were found in the front seat, the implication to be overcome was whether the drugs belonged to Mr. Walker. In addition, any implication of drug trafficking was countered on cross-examination and closing argument with the alternative explanation of male prostitution. T. at 138-139, 229.
{¶ 43} The explanation as to why appellant was stopped was necessary to lay the groundwork for the arrest. Questions on the amount of the drugs and the way they were packaged were necessary to overcome the implication that the drugs belonged to Mr. Walker.
{¶ 44} Upon review, we find no undue prejudice to appellant from the prosecutor's comments and questions given the use of some of the evidence as a defense to the charges.
{¶ 45} Assignment of Error IV is denied. *11
{¶ 47} The standard this issue must be measured against is set out inState v. Bradley (1989),
{¶ 48} "2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976],
{¶ 49} "3. 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."
{¶ 50} Appellant claims his counsel was deficient in not objecting to Officer Diels's testimony about his previous encounter with appellant (Assignment of Error III). As we noted in our decision in said assignment, defense counsel used the previous encounter to establish a motive of revenge by Officer Diels. This court must accord deference to defense counsel's strategic choices made during trial and "requires us to eliminate the distorting effect of hindsight." State v. Post (1987),
{¶ 51} We find the use of the previous encounter to have been part of appellant's defense and therefore not unduly prejudicial to appellant.
{¶ 52} Assignment of Error V is denied.
{¶ 53} The judgment of the Court of Common Pleas of Richland County, Ohio is hereby affirmed.
*13Farmer, J., Gwin, P.J. and Wise, J. concur.