[Cite as State v. Harris, 2020-Ohio-4138.]

                                COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                                  No. 109083
                 v.                                :

ERNEST HARRIS,                                    :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: August 20, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-19-637630-B


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Ashley Gilkerson, Assistant Prosecuting
                 Attorney, for appellee.

                 Gina A. Kuhlman, for appellant.


LARRY A. JONES, SR., P.J.:

        {¶ 1}      Defendant-appellant,         Ernest   Harris   (“Harris”),   appeals   his

convictions for possession of drugs and permitting drug abuse, felonies of the fifth

degree. For the reasons that follow, we affirm.
       {¶ 2}       In 2019, Harris was charged with one count each of possession of

drugs, permitting drug abuse, and possessing criminal tools. The matter proceeded

to a jury trial.

       {¶ 3}       The following pertinent evidence was presented at trial.

       {¶ 4}       On January 16, 2019, Cleveland police executed a search warrant at

Harris’s Cleveland home. Harris was in the process of obtaining ownership of the

home and had tenants that lived in the house with him. There were two bedrooms

on the first floor ─ a front one and a back one; Harris occupied the front one, which

he kept padlocked.

       {¶ 5}       When police executed the search warrant, they found the following in

Harris’s bedroom: a plastic baggie containing suspected cocaine residue, two digital

scales with suspected cocaine residue, two gun magazines, six live 9 mm bullets, a

box of sandwich baggies, and a utility bill and court papers addressed to Harris at

his home address. Police seized other contraband that was scattered throughout

the house including a spoon containing cocaine residue on the living room table, a

bag containing crack cocaine on the kitchen floor, a mirror containing drug residue

in the downstairs back bedroom, a spoon with drug residue in the upstairs middle

bedroom, and two crack pipes seized from persons who lived in or were at the house

at the time of the raid.

       {¶ 6}       Cleveland Police Detective Ryan McMahon (“Detective McMahon”)

wore a body camera during the execution of the search warrant; the video of the

body camera was played for the jury during trial and entered into evidence.
Detective McMahon explained that Harris motioned to him that “his bedroom’s the

one right over here where we’re all in, and he’s motioning to the front bedroom * *

*.” The detective also directly asked Harris “which one’s your bedroom?” Harris

responded “[t]he one you’re in right now,” which the detective testified

corresponded with the downstairs front bedroom.

      {¶ 7}   Megan Peders (“Peders”), a forensic drug chemist with the Cuyahoga

County Medical Examiner’s Office, testified regarding her analysis of the contraband

police seized during their search. Peders testified that cocaine residue is still

considered cocaine. Peders testified that the pipes, spoons, plastic baggies with

suspected cocaine residue and cocaine “crumbs,” scales, and mirrors seized during

the search of Harris’s house tested positive for cocaine.

      {¶ 8}   The jury acquitted Harris of the possessing criminal tools charge and

found him guilty of possession of drugs and permitting drug abuse. The trial court

sentenced him to time served.

      {¶ 9}   Harris filed a timely appeal but failed to file an appellate brief so this

court sua sponte dismissed his appeal pursuant to App.R. 18(C).

      {¶ 10} Harris filed an application for reopening pursuant to App.R. 26(B),

which this court treated as a motion for reconsideration and granted, vacating the

previous order dismissing his appeal.

      {¶ 11} Harris raises the following assignments of error for our review:

      I. The trial court erred in failing to grant appellant’s Crim.R. 29 motion
      for acquittal.
         II. Appellant’s convictions were not supported by sufficient evidence.

         III. The trial court erred in entering judgment on the verdict that was
         against the manifest weight of the evidence.

         IV. Appellant’s trial counsel was ineffective.

Sufficiency of the Evidence

         {¶ 12} We consider the first and second assignments of error together. As

an initial matter, we note that the appellate rules require that assignments of error

be set forth and argued separately.        See App.R. 16(A)(7) (“The appellant shall

include in its brief * * * [a]n argument containing the contentions of the appellant

with respect to each assignment of error presented for review and the reasons in

support of the contentions, with citations to the authorities, statutes, and parts of

the record on which appellant relies.”) While it is in this court’s discretion to

combine assignments of error when reviewing them, it is not in the appellant’s

discretion to do the same when drafting his or her brief. Moreover, this “court may

disregard an assignment of error presented for review if the party raising it fails to

identify in the record the error on which the assignment of error is based or fails to

argue the assignment separately in the brief, as required under App.R. 16(A).”

App.R. 12(A)(2). We recognize, however, that appeals are best decided on their

merits; therefore, we will proceed to address the first and second assignments of

error.

         {¶ 13} In the first and second assignments of error, Harris argues that there

was insufficient evidence to support his convictions.
      {¶ 14} Crim.R. 29(A) provides for an acquittal “if the evidence is insufficient

to sustain a conviction of such offense or offenses.”        A sufficiency challenge

essentially argues that the evidence presented was inadequate to support the jury

verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d

541 (1997). “‘The relevant question is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”’ State v. Getsy, 84 Ohio

St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson v. Virginia, 443 U.S. 307,

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “[A] conviction based on legally insufficient

evidence constitutes a denial of due process.” Thompkins at id., citing Tibbs v.

Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). When reviewing a

sufficiency-of-the-evidence claim, we review the evidence in a light most favorable

to the prosecution. State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996).

      {¶ 15} Harris was convicted of possession of drugs and permitting drug

abuse. Harris contends that there was insufficient evidence that he possessed drugs

but does not dispute his permitting drug abuse conviction under the first and second

assignments of error; therefore, we will limit our analysis to whether there was

sufficient evidence to sustain his conviction for possession of drugs.

      {¶ 16} R.C. 2925.11(A) provides that “[n]o person shall knowingly obtain,

possess, or use a controlled substance * * *.” R.C. 2905.01(K) defines the term

“possess” as “having control over a thing or substance, but may not be inferred solely

from mere access to the thing or substance through ownership or occupation of the
premises upon which the thing or substance is found.” Possession as defined in R.C.

2905.01(K) may be actual or constructive possession. State v. Byrd, 8th Dist.

Cuyahoga No. 98037, 2012-Ohio-5728, ¶ 17, citing State v. Jackson, 8th Dist.

Cuyahoga No. 97743, 2012-Ohio-4278, ¶ 38. Circumstantial evidence alone is

sufficient to prove constructive possession. Jackson at ¶ 19. The mere presence of

an individual in the vicinity of illegal drugs is insufficient to prove the element of

possession; however, if the individual is able to exercise control or dominion over

the illegal drugs, he or she may be convicted of possession. Id., citing State v.

Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d 351 (1976); see also State v. Harris, 8th

Dist. Cuyahoga Nos. 98183 and 98184, 2013-Ohio-484, ¶ 16. “This court has

consistently held that constructive possession can be established through the

knowledge of illegal substances or goods and the ability to exercise control over the

goods or the premises on which the goods are found.” (Citations omitted.) State v.

Tyler, 8th Dist. Cuyahoga No. 99402, 2013-Ohio-5242, ¶ 23.

      {¶ 17} In Harris, which involved the defendant here, Ernest Harris, the

Cleveland police executed a search warrant at appellant’s house.1 The appellant and

three other people were in the house at the time the police searched it. Appellant

occupied the downstairs front bedroom; the bedroom was secured by a padlock.

Police found a glass tube with suspected burnt crack cocaine residue, drug

paraphernalia, and a utility bill addressed to appellant in his bedroom. Id. at ¶ 3.




      1Harris’s prior convictions were not   discussed or admitted as evidence during trial.
The appellant was convicted of possession of drugs, possessing criminal tools, and

permitting drug abuse. Id. at ¶ 5.

      {¶ 18} Appellant argued that there was insufficient evidence to support his

conviction because the state failed to establish constructive possession of the drugs.

This court disagreed and found that there was sufficient evidence to show that the

appellant possessed drugs because the appellant was in the house when the police

executed the search warrant and the police found a utility bill, crack cocaine, and

drug paraphernalia in plain view in appellant’s bedroom that was secured by a

padlock. Id. at ¶ 22.

      {¶ 19} Likewise in this case, Harris was present in his house when police

executed the search warrant. The police found a plastic baggie with cocaine residue

and two digital scales with cocaine residue in Harris’s bedroom, which was secured

by a padlock that police had to break open during the search. Police also found a

utility bill and mail from probate court addressed to Harris at his home address in

the bedroom. Moreover, in this case, Harris admitted to police that the padlocked

bedroom was his room. Based on this evidence, we find sufficient evidence to

support Harris’s conviction for possession of drugs.

      {¶ 20} In light of the above, the first and second assignments of error are

overruled.




Manifest Weight of the Evidence
      {¶ 21} In the third assignment of error, Harris argues that his conviction for

drug possession was against the manifest weight of the evidence. Harris does not

challenge his permitting drug abuse conviction under this assignment of error.

      {¶ 22} The criminal manifest weight-of-the-evidence standard addresses the

evidence’s effect of inducing belief. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-

2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d

541. Under the manifest weight-of-the-evidence standard, a reviewing court must

ask the following question: whose evidence is more persuasive — the state’s or the

defendant’s? Wilson at id. Although there may be legally sufficient evidence to

support a judgment, it may nevertheless be against the manifest weight of the

evidence. Thompkins at 387; State v. Johnson, 88 Ohio St.3d 95, 723 N.E.2d 1054

(2000). “When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the manifest weight of the evidence, the appellate court

sits as a ‘thirteenth juror’ and disagrees with the fact finder’s resolution of the

conflicting testimony.” Wilson at id., quoting Thompkins at id.

‘“The discretionary power to grant a new trial should be exercised only in the

exceptional   case   in   which   the   evidence    weighs   heavily   against   the

conviction.’” Thompkins at id, quoting State v. Martin, 20 Ohio App.3d 172, 175,

485 N.E.2d 717 (1st Dist.1983).

      {¶ 23} During the execution of the search warrant, police found drugs and

drug paraphernalia scattered throughout Harris’s house. In the downstairs front

bedroom, which the jury could determine was Harris’s bedroom based on mail
addressed to Harris and the fact that Harris admitted the room was his, police seized

a plastic baggie that contained cocaine residue, two digital scales with cocaine

residue, six live 9 mm bullets, and a box of sandwich baggies that detectives testified

are commonly used to package drugs.

      {¶ 24} Besides the contraband found in Harris’s bedroom, police confiscated

numerous drugs and drug-related items throughout the house. Police found spoons

containing cocaine residue, a plastic bag containing cocaine “crumbs,” and mirrors,

crack pipes, and multiple plastic baggies containing cocaine residue. Harris was in

the process of obtaining ownership of the house and had the ability to exercise

control over both the rooms that contained drugs and paraphernalia, as well as the

drugs and paraphernalia themselves. He further had the ability to use, possess, and

stash the drugs and paraphernalia found in his home. Thus, the jury could have

found beyond a reasonable doubt that Harris possessed drugs.

      {¶ 25} Upon reviewing the entire record, we find that the conviction for

possession of drugs was not against the manifest weight of the evidence nor is this

an exceptional case in which the evidence weighs heavily against the conviction.

      {¶ 26} Accordingly, the third assignment of error is overruled.

Ineffective Assistance of Counsel

      {¶ 27} In the fourth assignment of error, Harris contends that his

constitutional right to effective assistance of counsel was violated.

      {¶ 28} A criminal defendant has the right to effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). To demonstrate ineffective assistance of counsel, a defendant must satisfy

both parts of a two-prong test. Id. at 687. The first prong requires that the

defendant show that trial counsel’s performance was so deficient that the attorney

was not functioning as the counsel guaranteed by the Sixth Amendment to the

United States Constitution. Id. Under the second prong, the defendant must

establish that counsel’s “deficient performance prejudiced the defense.” Id. We

determine prejudice by analyzing whether “there is a reasonable probability that but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. “Reasonable probability” is defined as probability sufficient

to undermine confidence in the outcome. Id. The failure to prove either prong of

the Strickland test is fatal to a claim of ineffective assistance. Id. at 697.

        {¶ 29} Harris argues that his counsel was ineffective because counsel did not

move to suppress evidence in the case, did not move to dismiss the case for a

violation of his speedy trial rights, and did not object and move for a mistrial when

witnesses testified that Harris stated that the downstairs front bedroom was his

room.

        {¶ 30} The failure to file a suppression motion is not per se ineffective

assistance of counsel. State v. Watts, 8th Dist. Cuyahoga No. 104188, 2016-Ohio-

8318, ¶ 17, citing State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).

Rather, a trial counsel’s failure to file a motion to suppress constitutes ineffective

assistance of counsel only if there is a reasonable probability that, had the motion to

suppress been filed, it would have been granted. Watts at id.
       {¶ 31} Harris states that his counsel was ineffective for not moving to

suppress evidence in this case but fails to explain why the evidence should have been

suppressed or provide this court any citation to the record or authority to support

his argument. It is not the role of this court to make arguments for a party and we

decline to do so in this case. Likewise, Harris fails to support his other two claims ─

that counsel was ineffective for failing to move for dismissal based on a violation of

Harris’s speedy trial rights2 or move for a mistrial due to inadmissible witness

testimony ─ with more than mere statements that counsel was ineffective. Absent

more and based on our independent review of the record, we decline to find there

was a deficiency in counsel’s performance or that Harris’s attorney prejudiced his

defense.

       {¶ 32} Accordingly, the fourth assignment of error is overruled.

       {¶ 33} Judgment 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

convictions having been affirmed, any bail pending is terminated. Case remanded

to the trial court for execution of sentence.



       2The record reflects that  prior to trial, Harris filed a pro se motion to dismiss based
on a violation of his speedy trial rights. Just before trial began, defense counsel raised the
issue of speedy trial. The state objected, and the trial court agreed with the state’s position
that there was no violation of speedy trial rights.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR
