STATE OF OHIO, PLAINTIFF-APPELLEE vs. VERKO VARGAS, DEFENDANT-APPELLANT
No. 97376
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 21, 2012
2012-Ohio-2767
JOURNAL ENTRY AND OPINION; Case No. CR-548241
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-548241
BEFORE: Keough, J., Blackmon, A.J., and Jones, J.
RELEASED AND JOURNALIZED: June 21, 2012
Christopher R. Fortunato
13363 Madison Avenue
Lakewood, OH 44107
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Edward D. Brydle
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
{¶1} Defendant-appellant, Verko Vargas, appeals from the trial court‘s judgment, rendered after a jury trial, finding him guilty of drug trafficking and drug possession. Vargas contends that his convictions were not supported by sufficient evidence and were against the manifest weight of the evidence, and that he was denied his constitutional right to effective assistance of counsel. Finding no merit to the appeal, we affirm.
I. Facts and Procedural History
{¶2} Vargas was indicted on two counts of drug trafficking in violation of
{¶3} The State called two witnesses at trial: Detectives Robert Martin and Benjamin McCulley of the Cleveland police department‘s 5th District Vice Unit. Detective Martin testified that the 5th District is a high drug-activity area and the Vice Unit focuses primarily on buy/bust drug operations to apprehend drug dealers. He described in detail what a buy/bust operation is and how it is conducted.
{¶4} He testified that on March 10, 2011, the Vice Unit was conducting a buy/bust operation at the Marathon gas station at the corner of East 140th Street and St. Clair Avenue in Cleveland. Detective Martin testified that the police have made many
{¶5} Detective Martin testified that the Vice Unit was using a confidential, reliable informant (“CRI“) who had worked with the unit for the last year and a half for the buy/bust operation. Prior to the buy/bust operation, the CRI and his vehicle were searched at the police station to ensure that the CRI and the car were free of contraband. The only items the CRI kept on his person were his car keys and his cell phone. The police gave him a previously photocopied $20 bill to use as buy money.
{¶6} At approximately 10:30 p.m., the Vice Unit and the CRI went to the gas station. The CRI parked his car by the front doors of the station. Detectives Martin and Crayton, who were in separate cars, pulled into the parking lot and parked in different areas away from the CRI.
{¶7} According to Detective Martin, Vargas approached the CRI almost immediately. The CRI was on his cell phone pretending to talk to his girlfriend as Vargas approached. Detective Martin, who the CRI was actually talking to, heard Vargas say something to the CRI and then saw Vargas wave and walk away. The CRI then asked Detective Martin if he should follow Vargas, as he had requested, down the street toward East 144th Street and Coit Avenue. Detective Martin told the CRI it was okay to follow, as long as the CRI and the detective had a clear view of Vargas.
{¶8} The CRI drove out of the gas station parking lot and slowly followed Vargas, who was on foot, down the street. Detective Martin followed the CRI‘s car, and Detective Crayton followed behind. Detective Martin testified that he instructed Detective Crayton to continue to follow the CRI, and then he passed the CRI‘s vehicle, looped around a few streets, and parked on East 144th Street just west of Coit Avenue. As he waited there, Detective Crayton continually advised him and the detectives in the undercover, takedown cars where Vargas and CRI were.
{¶9} Detective Martin eventually saw Vargas turn the corner from Coit Avenue onto East 144th Street. The CRI parked his car at the corner, and Detective Martin then saw Vargas go to the driver‘s window of the CRI‘s car, lean in, and engage in conversation with the CRI. Detective Martin then saw Vargas enter a house on the corner of Coit Avenue and East 144th Street. While Vargas was in the house, Detective Martin instructed the CRI to turn his car around so the detective could see when the CRI tapped his brake lights, which was to be the signal that the transaction was completed.
{¶10} Detective Martin testified that shortly after entering the house, Vargas walked back out onto the street and over to the CRI‘s car. Detective Martin saw him lean into the car and, two to three seconds later, he saw the CRI‘s brake lights blink a few times, indicating that the sale was complete. Detective Martin then ordered the takedown cars to come in, and Vargas was taken into custody.
{¶11} Detective McCulley testified that he was in a takedown car for the March 10, 2011 buy/bust. He first positioned his car on Rugby Street, across the street from the
{¶12} The trial court denied defense counsel‘s
II. Analysis
A. Ineffective Assistance of Counsel
{¶13} In his first assignment of error, Vargas argues that his trial counsel was ineffective for failing to file a motion to compel the identity of the informant and produce him for trial.
{¶14} To establish ineffective assistance of counsel, a defendant must demonstrate that counsel‘s performance fell below an objective standard of reasonable representation and that he was prejudiced by that performance. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052. (1984). Prejudice is established when the defendant
{¶15} In this case, it is apparent that the informant‘s testimony would have only strengthened the state‘s case against Vargas. Thus, we find defense counsel‘s decision not to pursue the identity and testimony of the informant to be a strategic decision that does not constitute ineffective assistance of counsel. Furthermore, Vargas pointed to nothing to indicate how the result at trial would have been different if the informant had testified. Accordingly, he failed to demonstrate any prejudice resulting from counsel‘s trial strategy, the second prong of the test for ineffective assistance of counsel. Appellant‘s first assignment of error is therefore overruled.
B. Sufficiency and Manifest Weight of the Evidence
{¶17}
{¶18} A manifest weight challenge, on the other hand, questions whether the prosecution met its burden of persuasion. State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 541 (1982). A reviewing court may reverse the judgment of conviction if it appears that the trier of fact “clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. A finding that a conviction was supported by the manifest weight of the evidence necessarily includes a finding of sufficiency. Id. at 388.
{¶20} Vargas argues that his convictions were not supported by sufficient evidence and were against the manifest weight of the evidence because there was no evidence to demonstrate that he acted knowingly. Citing State v. McKoy, 8th Dist. No. 93363, 2010-Ohio-522, he contends that only the CRI could testify to what transpired between him and the CRI, and without the CRI‘s testimony, there was no evidence to satisfy the “knowingly” element of the offenses.
{¶21} But McKoy is easily distinguishable from this case. In McKoy, the only witness to the alleged drug transaction was the state‘s unidentified witness. Accordingly, this court held that disclosure of the informant‘s identity and the information he would provide were essential to McKoy‘s defense, and that the trial court properly ordered the state to disclose the identity of the CI.
{¶22} But here, there was a witness to the entire transaction. Detective Martin testified that he saw Vargas approach the CRI as he was sitting in his car at the gas
{¶23} “A person acts knowingly when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature.”
{¶24} Vargas‘s convictions are supported by the manifest weight of the evidence; hence, they are also supported by sufficient evidence, and the trial court did not err in
{¶25} 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.
KATHLEEN ANN KEOUGH, JUDGE
PATRICIA A. BLACKMON, A.J., and
LARRY A. JONES, SR., J., CONCUR