[Cite as State v. Parra, 2011-Ohio-3977.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 95619



                                       STATE OF OHIO
                                            PLAINTIFF-APPELLEE

                                              vs.


                                   ANTONIO D. PARRA
                                            DEFENDANT-APPELLANT




                     JUDGMENT:
   AFFIRMED IN PART; REVERSED IN PART; MODIFIED IN
                  PART; REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-522424

        BEFORE: Kilbane, A.J., Sweeney, J., and Jones, J.

        RELEASED AND JOURNALIZED:                   August 11, 2011
ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Margaret A. Troia
Gregory Mussman
Assistant County Prosecutors
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY EILEEN KILBANE, A.J.:

       {¶ 1} Defendant-appellant, Antonio Parra, appeals from his convictions for having

a weapon while under disability, tampering with evidence, receiving stolen property, drug

trafficking, drug possession, and possession of criminal tools.   For the reasons set forth

below, we affirm the convictions for tampering with evidence, having a weapon while

under disability, and possession of criminal tools.       We reverse his conviction for

receiving stolen property, modify his conviction for trafficking in more than the bulk

amount but less than five times the bulk amount of Methylenedioxymethamphetamine
(MDMA) to the lesser included offense of trafficking under R.C. 2925.03(C), and modify

his conviction for possession of more than the bulk amount but less than five times the

bulk amount of MDMA to the lesser included offense of possession under

R.C. 2925.11(C), and remand for resentencing.

      {¶ 2} On March 31, 2009, defendant was indicted pursuant to a 12-count

indictment in connection with an armed robbery that was alleged to have occurred on

March 9, 2009. Counts 1 and 2 charged him with aggravated robbery, with one- and

three-year firearm specifications, and specifications for the forfeiture of a weapon and

$854.50. Counts 3 and 4 charged him with kidnapping, with one- and three-year firearm

specifications, and specifications for the forfeiture of a weapon and $854.50.   Count 5

charged him with having a weapon while under disability and a specification for the

forfeiture of a .45 caliber handgun. Count 6 charged him with intimidation of a witness,

and specifications for the forfeiture of a .45 caliber handgun and $854.50.      Count 7

charged him with tampering with evidence, with one- and three-year firearm

specifications, and specifications for the forfeiture of a weapon and $854.50.   Count 8

charged him with receiving stolen property, and Count 9 charged him with disrupting

public services. Counts 10 and 11 charged him with possessing and trafficking in an

amount equal to or exceeding the bulk amount of MDMA, but less than five times the

bulk amount of MDMA, with one- and three-year firearm specifications, and

specifications for the forfeiture of a weapon and $854.50.   Count 12 charged him with

possession of criminal tools, with one- and three-year firearm specifications, and
specifications for the forfeiture of a weapon and $854.50.       Defendant pled not guilty,

and the matter proceeded to a jury trial on February 11, 2010.

       {¶ 3} For its case, the State presented testimony from Van H. Frisco (Frisco),

James Greenberg, Bratenahl police officers Michael Ivy and Michael Flanagan, Cleveland

police officers Gregory Williams and Scott Miller, Cleveland police Detective Michael

Legg, and Cleveland police fingerprint examiner Felicia Simington.

       {¶ 4} Frisco testified that on March 9, 2009, he invited his boss, James Greenberg,

to his home on East 118th Street in the city of Cleveland, to see the 1995 Lexus that

Frisco had recently purchased.     At about 6:30 p.m., Frisco backed the car into his

driveway and spoke to his neighbor.    The neighbor went inside, and Greenberg arrived.

Greenberg parked on the street then got into the passenger seat of the Lexus, and Frisco

got into the driver’s seat. A few moments later, a bluish-purple Nissan pulled into the

driveway. The passenger got out of the car, approached Frisco on the driver’s side of

the Lexus, and confronted him with an automatic handgun. Frisco opened the door to

find out what the man wanted.

       {¶ 5} The gunman, later identified as defendant, was wearing a beige polo jacket,

beige polo hat, jeans, and brown boots. The gunman tapped Frisco on the chest with the

gun and then took approximately $360 from Frisco’s shirt pocket. He demanded the

keys to the Lexus, but Frisco indicated that he did not have them.           At that point,

defendant grabbed Frisco’s cell phone and slammed it to the ground.      He walked back to

the Nissan and then proceeded northbound toward Sellers Avenue.
       {¶ 6} Frisco and Greenberg followed the Nissan in Greenberg’s car.        As they

reached Sellers Avenue, they observed the Nissan headed back toward them, pursued by a

police car.   The Nissan turned left and headed west onto Sellers Avenue.             The

occupants of the Nissan abandoned the vehicle near East 117th Street, cut through yards,

and continued on foot toward East 115th Street. Frisco next observed that defendant

was no longer wearing the jacket he had been wearing earlier, and saw defendant

knocking on the door of one of the houses on East 115th Street. Several police cars

passed, and defendant joined a group of people who were playing basketball. Frisco and

Greenberg stopped a police cruiser and informed the officer that the person the police had

been pursuing minutes earlier was with the group playing basketball. Defendant was

subsequently arrested.   A few days later, Frisco met with a detective and identified

defendant from a photo array. Frisco identified him again in court, and identified State’s

exhibit 9, a .45 caliber automatic handgun, as the weapon used in this matter.

       {¶ 7} On cross-examination, Frisco acknowledged that he was imprisoned from

2004 to 2007, on drug-related charges. He stated that he did not know the defendant,

and he admitted that while he followed defendant from East 117th Street to East 115th

Street, he was not able to continuously observe him.

       {¶ 8} Greenberg likewise testified that while he and Frisco were seated in the

Lexus, a purple vehicle, which Greenberg identified as a Dodge Neon, pulled into the

driveway. The passenger exited the car with an automatic handgun and approached the

Lexus on the driver’s side. He pointed the gun at the men, demanded Frisco’s money,
and ordered Greenberg to keep his hands up. The gunman took cash from Frisco’s shirt

pocket and also demanded the keys to his car. Frisco informed the man that he did not

have the keys, and the man then grabbed Frisco’s cell phone and threw it to the ground.

Greenberg also identified the defendant from a photo array, identified him again in court,

and identified State’s exhibit 9 as the same weapon defendant had at the time of the

robbery.

       {¶ 9} Officer Ivy testified that at approximately 6:40 p.m., he observed a purple

vehicle that was headed west on Lake Shore Boulevard make a U-turn.         Ivy stopped the

car and radioed its license plate number, but the occupants of the car fled as Ivy exited his

cruiser.   Ivy returned to his cruiser and followed the purple car eastward toward Eddy

Road. Other units joined in the pursuit in the area of Oakview and East 120th Street.

The driver and a passenger abandoned the car at East 118th Street and Sellers Avenue.

       {¶ 10} According to Officer Ivy, the driver was wearing a dark jacket and blue

jeans, and the passenger was wearing a light-colored sweatshirt, jeans, and a brown cap.

Ivy followed the suspects, but after they jumped over a fence, he returned to his vehicle to

wait for assistance.   A few minutes later, two men approached Ivy and reported that they

had been robbed by one of the men who had been in the purple car.

       {¶ 11} Officer Ivy next learned that the purple vehicle had been stolen from Katie

Simmons. The ignition was “punched” so that a key was not needed to start it, and a

screwdriver was on the driver’s seat.   The defendant was apprehended a short time later,
and Ivy believed, based upon his clothing, that he had been the passenger in the purple car

that he pulled over earlier.

       {¶ 12} Officer Flanagan testified that he is a K-9 officer who works with a german

shepherd that is certified to detect narcotics and track scents.      The dog, K-9 Eric, has

been trained to go to open areas and “down” or indicate when he finds articles that have

fresh human odor.     Officer Flanagan has participated in over 50 searches with the aid of

a search dog.

       {¶ 13} On March 9, 2009, Officer Flanagan and K-9 Eric responded to Officer

Ivy’s call for assistance and met him on East 118th Street near the abandoned vehicle.

Officer Flanagan had K-9 Eric acquire scent from this area, and K-9 Eric tracked toward

a nearby wooden fence.         K-9 Eric “downed,” indicating that it had found an article, and

on the opposite side of the fence, Officer Flanagan found a .45 caliber semi-automatic

handgun. Nine bullets were in this weapon, and it was operable.

       {¶ 14} Officer Williams testified that in response to Officer Ivy’s request for

assistance, he proceeded to East 118th Street to search for a fleeing suspect wearing a

brown checked jacket.     At the corner of East 117th Street and Sellers Avenue, he spotted

the defendant wearing a light-colored shirt and beige hat.      Officer Williams continued to

search for someone in a brown jacket, but as he reached East 112th Street, Frisco and

Greenberg flagged him down and informed him that the man who had fled from the

Bratenahl police was the man in the beige shirt with the tan hat. Frisco additionally

reported to Officer Williams that the man had just robbed him.
        {¶ 15} Officer Williams returned to East 117th Street and Sellers Avenue and

observed defendant, in a beige shirt and tan hat, playing basketball with a group of 14 and

15 year olds.        He apprehended defendant, patted him down for weapons, and handcuffed

him.    Officer Williams removed a wad of money from the defendant’s right pocket.      He

felt another object in his left pocket. Williams removed this object, a bag of individually

wrapped pills that appeared to be ecstacy tablets.

        {¶ 16} Officer Miller, a drug analyst with the Cleveland Police Forensic

Laboratory, testified that he analyzed the bag of pills obtained in this matter and

determined that the bag contained 43 individually wrapped pills that had a total weight of

10.49 grams.         He determined that the pills contained ecstacy or MDMA, a schedule I

hallucinogen. Officer Miller further testified that the bulk amount of MDMA is 30

grams or 10 unit doses. One pill is a unit dose, and according to the officer, the MDMA

was less than the bulk amount by weight but more than the bulk amount by unit dose.

        {¶ 17} Detective Legg testified that he conducted a follow-up investigation in this

matter and interviewed Frisco and Greenberg separately on March 11, 2009.       In separate

photo arrays, both men identified the defendant as the gunman who had robbed Frisco.

Detective Legg next met with the defendant in the city jail.    The defendant received his

Miranda warnings. He did not wish to make a statement, but said, “I got caught, I’ll

take it to trial.”
       {¶ 18} Cleveland police fingerprint examiner Simington testified that she

determined that the gun recovered in this matter had been handled by multiple people so

any fingerprint evidence on the weapon had become contaminated.

       {¶ 19} At the close of its case, the State nolled the charge of aggravated robbery as

set forth in Count 2 (as to Greenberg), and the defendant moved for a judgment of

acquittal on the remaining offenses.        The trial court denied the motion, and the

defendant elected to present evidence.

       {¶ 20} Defendant testified that he has prior drug convictions.     On March 9, 2009,

he spent the afternoon with his friend Kurt, who lives at East 115th Street and Sellers

Avenue. They wanted drugs so the defendant walked over to see Frisco, who had sold

drugs to them on earlier occasions.

       {¶ 21} Defendant stated that Frisco and Greenberg were in the Lexus when he

arrived, so he got into the back seat.   Frisco got a phone call, exited the vehicle, and then

motioned for Greenberg.      While Frisco and Greenberg talked outside, the defendant

reached into the console of the Lexus and took out a bag of pills. Defendant walked

back toward East 115th Street, pretending to be talking on the telephone, but promised

Frisco that he would return. Defendant joined some of his friends who were playing

basketball.   A short time later, a group of police arrived and, at Frisco’s urging,

defendant was arrested.    Defendant stated that he had not been dressed in a beige shirt

with a tan hat, but was wearing a white shirt and white hat.        He also denied having a
weapon, and he stated that the money in his possession was from his state and federal tax

refunds that totaled $1,678.

       {¶ 22} The jury subsequently acquitted defendant of the remaining charge of

aggravated robbery, the kidnapping charges, and the charges of intimidation and

disruption of public services. Defendant was convicted of         having a weapon while

under disability, tampering with evidence, receiving stolen property, drug trafficking,

drug possession, possession of criminal tools, and the forfeiture specifications, but was

acquitted of the three-year firearm specifications for these charges.       The trial court

sentenced defendant to a total of nine years1 and three years of postrelease control.

       {¶ 23} Defendant now appeals and assigns ten errors for our review.     For the sake

of convenience, we will address the assignments of error out of their predesignated order.



       {¶ 24} Defendant’s first assignment of error states:

       “Defendant was denied due process of law when the prosecutor
       amended the indictment by giving his opinion as to the subject of the
       tampering with evidence.”

       {¶ 25} Within this assignment of error, defendant complains that the prosecuting

attorney’s closing argument improperly amended the charge of tampering with evidence




       The court sentenced defendant to three years of imprisonment on Count 5,
       1

two years of imprisonment plus one year for the firearm on Count 7, and two years
of imprisonment plus one year for the firearm on Counts 10 and 11, which were
merged. The court imposed these terms consecutively and concurrent to six-month
terms for Counts 8 and 12.
because the indictment referred to “any record, document or thing” but the prosecutor’s

closing argument referred to the gun and/or Frisco’s cell phone.

       {¶ 26} Crim.R. 7(D) governs the amendment of indictments and provides in

relevant part as follows:

       “The court may at any time before, during, or after a trial amend the
       indictment * * * in respect to any defect, imperfection, or omission in
       form or substance, or of any variance with the evidence, provided no
       change is made in the name or identity of the crime charged. If any
       amendment is made to the substance of the indictment * * * or to cure a
       variance between the indictment * * * and the proof, the defendant is
       entitled to a discharge of the jury on the defendant’s motion, if a jury
       has been impaneled, and to a reasonable continuance, unless it clearly
       appears from the whole proceedings that the defendant has not been
       misled or prejudiced by the defect or variance in respect to which the
       amendment is made, or that the defendant’s rights will be fully
       protected by proceeding with the trial, or by a postponement thereof to
       a later day with the same or another jury.”

       {¶ 27} In this matter, there was no change in the name or identity of the crime

charged.   The crime charged remained tampering with evidence, so there was no

amendment to the substance of the indictment.         Further, the prosecutor’s argument

conformed to the indictment.     See State v. Halczysak, Cuyahoga App. No. 87036,

2006-Ohio-3734.

       {¶ 28} Accord State v. Sharpless (Dec. 18, 1998), Portage App. No. 97-P-0065

(prosecuting attorney’s closing argument did not constructively amend the charge where

it conformed to the indictment). See, also, State v. Montes (1993), 92 Ohio App.3d 539,

636 N.E.2d 378.

       {¶ 29} This assignment of error is without merit.
       {¶ 30} Defendant’s second assignment of error states:

       “Defendant was denied due process of law when the court did not
       define bulk amount for the jury.”

       {¶ 31} Defendant next asserts that the trial court’s instructions on the drug offenses

(Counts 10 and 11) were erroneous since the court did not define the term “hallucinogen,”

and did not define the term “bulk amount.”

       {¶ 32} It is the duty of the court to instruct the jury as a matter of law as to what

constitutes a bulk amount under pertinent statutes. State v. Chaffin (June 14, 1985),

Scioto App. No. 1523. Further, in accordance with R.C. 2925.03(E),

       “(E) When a person is charged with the sale of or offer to sell a bulk
       amount or a multiple of a bulk amount of a controlled substance, the
       jury, or the court trying the accused, shall determine the amount of the
       controlled substance involved at the time of the offense and, if a guilty
       verdict is returned, shall return the findings as part of the verdict. In
       any such case, it is unnecessary to find and return the exact amount of
       the controlled substance involved, and it is sufficient if the finding and
       return is to the effect that the amount of the controlled substance
       involved is the requisite amount, or that the amount of the controlled
       substance involved is less than the requisite amount.”

       {¶ 33} In this matter, the jury was required to determine whether the defendant was

guilty of trafficking in more than the bulk amount but less than five times the bulk

amount of MDMA, but the trial court’s oral and written jury instructions failed to define

the term “bulk amount” for the jury. Although a prosecution witness testified that the

bulk amount is either 10 grams or 30 unit doses, this was insufficient to meet the court’s

duty of defining the term “bulk amount” for the jury for use during its deliberations.
      {¶ 34} As noted in State v. Huber, 187 Ohio App.3d 697, 2010-Ohio-2919, 933

N.E.2d 345, however,

      “While the evidence is insufficient to prove that Huber possessed even

      the ‘bulk amount’ of fentanyl, the evidence is sufficient to prove that he

      possessed at least some amount. ‘[A]n appellate court “can modify a

      verdict where the evidence shows that the appellant was not guilty of

      the crime for which he was convicted, but is guilty of a lesser included

      offense.”’   State v. Cobb, 153 Ohio App.3d 541, 2003-Ohio-3821, 795

      N.E.2d 73, at ¶7, quoting State v. Vanhorn (Mar. 31, 1983), Cuyahoga

      App. No. 44655, * * *. Huber may be convicted of aggravated drug

      possession under R.C. 2925.11 *       *   *, which does not specify an

      amount, simply saying that ‘aggravated possession of drugs is a felony

      of the fifth degree.’”   Accord State v. Skorvanek, 182 Ohio App.3d 615,

      2009-Ohio-1709, 914 N.E.2d 418.

      {¶ 35} Likewise, in this matter, the record does not establish that defendant

trafficked in more than the bulk amount of MDMA, but less than five times the bulk

amount, and does not establish that defendant possessed more than the bulk amount of

MDMA, but less than five times the bulk amount. The record does establish, however,

and the State did prove, that defendant committed the lesser included offenses of drug

possession and drug trafficking. Defendant’s conviction under Count 10 for trafficking

in more than the bulk amount but less than five times the bulk amount of MDMA is
modified to the lesser included offense of            trafficking under R.C. 2925.03(C).

Defendant’s conviction under Count 11 for possession of more than the bulk but less than

five times the bulk amount of MDMA is modified to the lesser included offense of

possession under R.C. 2925.11(C).

       {¶ 36} Defendant’s fifth assignment of error states:

       “Defendant was denied due process of law when he was convicted of
       tampering with evidence.”

       {¶ 37} In this matter, defendant complains that there is insufficient evidence to

support the conviction for tampering with evidence because the State did not identify one

single item of evidence with which defendant tampered, but instead listed two alternatives

under which the jury could find defendant guilty of this offense — throwing the gun and

smashing Frisco’s cell phone.      He further argues that insofar as the conviction is

premised upon the fact that the officers found a weapon behind the fence of the yard

where defendant ran, this evidence is insufficient to support the conviction under State v.

Wooden (1993), 86 Ohio App.3d 23, 619 N.E.2d 1132.

       {¶ 38} With regard to the first contention, we note that in State v. Vitale (1994), 96

Ohio App.3d 695, 645 N.E.2d 1277, this court held that a defendant has an inalienable

right to be tried on the same essential facts on which the grand jury found probable cause.

 Moreover, the defendant has a constitutional guarantee that the essential facts

constituting the offense for which he is tried will be found in the indictment of the grand

jury. Id.
       {¶ 39} In State v. McCombs, Cuyahoga App. No. 91784, 2009-Ohio-4036, this

court considered tampering with evidence charges that did not contain a “to wit” phrase to

specify the evidence allegedly tampered with.      This court noted that the “better practice

requires the State to differentiate the charges in the indictment with a ‘to wit’ phrase, or at

least clearly specify the act alleged in the bill of particulars,” but this court found no

reversible error since the evidence presented at trial provided discernible facts to

substantiate the tampering charges.

       {¶ 40} In this matter, the indictment charged that defendant did “alter, destroy,

conceal, or remove any record, document, or thing, with purpose to impair its value or

availability as evidence * * *.” There was no “to wit” provision to identify this item.

The defense raised no objection to the indictment, and the State’s evidence indicated,

however, that the gun and the broken cell phone comprised the evidence referred to in this

charge.   Accordingly, while we reiterate that the better practice is for the State to

identify the subjects of the tampering under R.C. 2921.12, we find no plain error herein.

       {¶ 41} With regard to the sufficiency of the evidence supporting the conviction for

this offense, we note that a challenge to the sufficiency of the evidence supporting a

conviction requires a court to determine whether the State has met its burden of

production at trial.   State v. Thompkins, 78 Ohio St.3d 380, 390, 1997-Ohio-52, 678

N.E.2d 541.    On review for sufficiency, courts are to assess not whether the State’s

evidence is to be believed, but whether, if believed, the evidence against a defendant

would support a conviction.      Id.   The relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt. State v.

Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.

       {¶ 42} The   elements     of   tampering   with    evidence    are   set   forth   in

R.C. 2921.12(A)(1) as follows:

       “(A) No person, knowing that an official proceeding or investigation is
       in progress, or is about to be or likely to be instituted, shall do any of
       the following:

       “(1) Alter, destroy, conceal, or remove any record, document, or thing,
       with purpose to impair its value or availability as evidence in such
       proceeding or investigation * * *.”

       {¶ 43} With regard to defendant’s complaint that the State offered two theories in

support of the conviction for this offense, we note that defendant did not object, so we

must review this argument under the plain error standard. State v. Long (1978), 53 Ohio

St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus. Further, in State v. Skatzes,

104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, the Supreme Court rejected the

contention that the right to a unanimous verdict includes a right to a unanimous theory of

culpable conduct supporting that verdict.

       {¶ 44} As to the claim that under Wooden, the conviction is unsupported by

sufficient evidence, we note that in Wooden, the conviction for tampering with evidence

was premised upon the fact that the police could not find one of the weapons used in a

shooting. The court found insufficient evidence to support the conviction and stated:

       “While the third gun was not recovered, this evidence is not sufficient
       to show that the appellant ‘altered, destroyed, concealed, or removed’
      it. Many possibilities as to the whereabouts of the gun can be
      imagined, including the possibility that one of the other two suspects
      fled the scene with it in his possession. In any case, the fact that the
      police looked a few places for the gun and could not find it does not
      necessarily show that the appellant tampered with it.”

      {¶ 45} Wooden is clearly distinguishable from this matter as the State’s evidence

involved more than a missing weapon.      Rather, the State’s evidence indicated that K-9

Eric tracked the scent from the abandoned car to the fence, then “downed.”       On the

opposite side of the fence, the officer found a .45 caliber semi-automatic weapon that

Frisco and Greenberg both identified as the weapon used by defendant.          The State

presented sufficient evidence that defendant concealed or removed the handgun from the

scene of the robbery with purpose to impair its availability as evidence in an official

proceeding or investigation.      This assignment of error is without merit.

      {¶ 46} The sixth assignment of error states:

      “Defendant was denied due process of law when the court denied a
      motion for judgment of acquittal on the count of receiving stolen
      property.”

      {¶ 47} Crim.R. 29(A), which governs motions for acquittal, states:

      “The court on motion of a defendant or on its own motion, after the
      evidence on either side is closed, shall order the entry of a judgment of
      acquittal of one or more offenses charged in the indictment,
      information, or complaint, if the evidence is insufficient to sustain a
      conviction of such offense or offenses.”

      {¶ 48} In this assignment of error, defendant maintains that the trial court should

have acquitted him of receiving stolen property because the State did not offer testimony
from the owner of the vehicle and did not establish that the vehicle was obtained in the

commission of a theft offense.

       {¶ 49} “Pursuant to Criminal Rule 29(A), a court shall not order an entry of

judgment of acquittal if the evidence is such that reasonable minds can reach different

conclusions as to whether each material element of a crime has been proved beyond a

reasonable doubt.” State v. Bridgeman (1978), 55 Ohio St.2d 261, 381 N.E.2d 184,

syllabus.   Moreover, circumstantial and direct evidence possess the same inherent

probative value. Jenks at 272.

       {¶ 50} The elements of receiving stolen property are set forth in R.C. 2913.51 as

follows:

       “(A) No person shall receive, retain, or dispose of property of another
       knowing or having reasonable cause to believe that the property has
       been obtained through commission of a theft offense.”

       {¶ 51} Receiving stolen property is a felony of the fourth degree if the property is a

motor vehicle. R.C. 2913.51(C).

       {¶ 52} In State v. Sims (1983),10 Ohio App.3d 56, 460 N.E.2d 672, this court

reversed the receiving stolen property conviction of a passenger in a car that had damage

to the steering wheel.     In reversing the conviction, this court held that “a conviction

for a theft-related offense cannot stand where a necessary element of the crime is

demonstrated solely by reference to hearsay information on a police computer print-out

indicating that certain property was stolen.”
       {¶ 53} In this matter, Officer Ivy testified that defendant had been the passenger in

a vehicle that had been stolen from Simmons.     The ignition was “punched” so that a key

was not needed to start it, but Simmons did not testify. On this record, we hold that

defendant’s conviction for receiving stolen property cannot stand since the essential

element, that the vehicle was stolen, was established by hearsay evidence and the owner

did not testify.

       {¶ 54} This assignment of error is well taken, and the conviction for receiving

stolen property is reversed.   The third assignment of error that challenges the mens rea

for this offense, and the fourth assignment of error that challenges the degree of this

offense, are accordingly rendered moot.    App.R. 12(A).

       {¶ 55} Defendant’s seventh assignment of error states:

       “Defendant was denied due process of law when the court overruled his
       motion for judgment of acquittal as to the offense of having a weapon
       while under a disability.”

       {¶ 56} Here, defendant complains that there is no evidence that defendant

possessed a handgun within the meaning of R.C. 2923.13.

       {¶ 57} In accordance with R.C. 2923.13, individuals who have been convicted of

any felony offense of violence are not permitted to “knowingly acquire, have, carry, or

use any firearm or dangerous ordnance.”

       {¶ 58} In this matter, Frisco and Greenberg both testified that defendant had a

weapon when he exited the vehicle and that he pointed the weapon at Frisco while he

demanded Frisco’s money. This evidence is sufficient to establish that defendant, a
convicted felon, had a weapon.      See State v. Ferrell (1992), 83 Ohio App.3d 294, 614

N.E.2d 1081.     Moreover, the acquittal on the firearm specifications for other counts of

the indictment does not mandate a different result.     See State v. Boyd (Jan. 12, 1995),

Cuyahoga App. No. 65883; State v. Woodson (1985), 24 Ohio App.3d 143, 493 N.E.2d

1018.    The Woodson court explained:

        “In criminal cases, as contrasted with civil cases, consistency between
        verdicts on several counts of an indictment is unnecessary where the
        defendant is convicted on one or some counts, and acquitted on others,
        and the conviction will generally be upheld, irrespective of its rational
        incompatibility with the acquittal.

        Thus, any inconsistency between verdicts on a count in an indictment
        charging appellant with having a weapon while under disability and a
        firearm specification within the same count will not be grounds for
        reversal.” Id.

        {¶ 59} In accordance with the foregoing, this assignment of error is without merit.

        {¶ 60} Defendant’s eighth assignment of error states:

        “Defendant was denied due process of law when the court informed the
        jury that the forfeiture needed to only be proven by a preponderance of
        the evidence and gave no definition of that term.”

        {¶ 61} In State v. Rivera, Cuyahoga App. No. 85059, 2005-Ohio-2622, this court

rejected this same argument and stated:

        “R.C. 2933.43(C) expressly provides that the standard of proof in
        forfeiture proceedings is a preponderance of the evidence.

        ‘When a hearing is conducted under this section, property shall be
        forfeited upon a showing, by a preponderance of the evidence, by the
        petitioner that the person from which the property was seized was in
        violation of division (A) of section 2933.42 of the Revised Code. If that
        showing is made, the court shall issue an order of forfeiture.’ R.C.
        2933.43(C).
       In State v. Casalicchio (1991), 58 Ohio St.3d 179, 569 N.E.2d 916, the
       Ohio Supreme Court held that a preponderance of the evidence is the
       appropriate standard in forfeiture proceedings.” Accord State v.
       Fannin, Cuyahoga App. No. 79991, 2002-Ohio-6312.

       {¶ 62} In accordance with the foregoing, this assignment of error is without merit.

       {¶ 63} Defendant’s ninth assignment of error states:

       “Defendant was denied due process of law when he was arbitrarily
       sentenced to consecutive sentences.”

       {¶ 64} In this assignment of error, defendant complains that the trial court failed to

consider required statutory factors before imposing sentence.    He notes that in Oregon v.

Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, the Supreme Court of the

United States permitted judicial fact-finding to impose consecutive sentences, contrary to

the Ohio Supreme Court’s ruling in State v. Foster,109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470. He further complains that the court did not consider R.C. 2929.11 and

2929.12 in this matter.

       {¶ 65} In State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, the

Ohio Supreme Court recently addressed this argument and held that Ice “does not revive

Ohio’s former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and

2929.41(A), which were held unconstitutional in Foster. Trial court judges are not

obligated to engage in judicial fact-finding prior to imposing consecutive sentences unless

the General Assembly enacts new legislation requiring that findings be made.” Id. at

paragraphs two and three of the syllabus.
       {¶ 66} Therefore, on review, an appellate court engages in the following two-part

inquiry:

       “First, [appellate courts] must examine the sentencing court’s
       compliance with all applicable rules and statutes in imposing the
       sentence to determine whether the sentence is clearly and convincingly
       contrary to law. If this first prong is satisfied, the trial court’s
       decision in imposing the term of imprisonment is reviewed under the
       abuse of discretion standard.” State v. Kalish, 120 Ohio St.3d 23,
       2008-Ohio-4912, 896 N.E.2d 124.

       {¶ 67} Under the version of R.C. 2929.11(A) in effect at the time defendant was

sentenced, when a trial court sentences an offender for a felony conviction it must be

guided by the “overriding purposes of felony sentencing.”          Those purposes are “to

protect the public from future crime by the offender and others and to punish the

offender.”   Id.   R.C. 2929.11(B) states that a felony sentence “must be reasonably

calculated to achieve the purposes set forth under R.C. 2929.11(A), commensurate with

and not demeaning to the seriousness of the crime and its impact on the victim, and

consistent with sentences imposed for similar crimes committed by similar offenders.”

R.C. 2929.12 sets forth factors a trial court must consider when determining the

seriousness of the offense and the likelihood that the offender will commit future

offenses.

       {¶ 68} This court has previously recognized that there is no requirement for judicial

findings in either R.C. 2929.11 or R.C. 2929.12, and that the trial court is required only to

carefully consider the statutory factors before imposing its sentence. State v. Samuels,

Cuyahoga App. No. 88610, 2007-Ohio-3904, ¶15. See, also, State v. Dudley, Lake App.
No. 2009-L-019 (By expressly stating that it considered the factors in R.C. 2929.11 and

R.C. 2929.12, the court satisfies its duty under those statutes).

       {¶ 69} In this matter, the sentence imposed for each offense was within the

statutory ranges for the offenses (three years for having a weapon while under disability,

two years for tampering with evidence, six months for receiving a stolen property, two

years for drug trafficking and drug possession, and six months for possession of criminal

tools, with one year on the firearm specification).       The trial court was not required to

engage in judicial fact-finding prior to imposing consecutive sentences. In addition, the

trial court’s remarks at the sentencing hearing indicate that the court considered the

appropriate statutory factors, and the trial court’s sentencing journal entry also indicates

that the trial court considered the requisite factors.   We find no error at law and no abuse

of discretion.

       {¶ 70} This assignment of error is without merit.

       {¶ 71} Defendant’s tenth assignment of error states:

       “Defendant was denied effective assistance of counsel.”

       {¶ 72} Within this assignment of error, defendant asserts that his trial counsel was

ineffective because he: (1) failed to object to the prosecuting attorney’s questioning of

Detective Legg regarding whether defendant made a statement at the time of his arrest;

(2) failed to file a motion to suppress evidence obtained at the time of defendant’s

warrantless arrest; (3) failed to object to hearsay that indicated the car defendant drove

was stolen; (4) failed to object to the State’s closing argument that mentioned a lack of
witnesses to support defendant’s version of events; and (5) failed to object to defects in

the charge of having a weapon while under disability.

       {¶ 73} In order to establish a claim of ineffective assistance of trial counsel, it is

clear that a defendant must make a two-part showing:

       “First, the defendant must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious
       that counsel was not functioning as the ‘counsel’ guaranteed the
       defendant by the Sixth Amendment. Second, the defendant must show
       that the deficient performance prejudiced the defense. This requires
       showing that counsel’s errors were so serious as to deprive the
       defendant of a fair trial, a trial whose result is reliable. Unless a
       defendant makes both showings, it cannot be said that the conviction *
       * * resulted from a breakdown in the adversary process that renders
       the result unreliable.” Strickland v. Washington (1986), 466 U.S. 668,
       687, 104 S.Ct. 2052, 80 L.Ed.2d 674.

       {¶ 74} The Strickland court also cautioned courts examining the issue that:

       “Judicial scrutiny of counsel’s performance must be highly deferential.
       It is all too tempting for a defendant to second-guess counsel’s
       assistance after conviction or adverse sentence, and it is all too easy for
       a court, examining counsel’s defense after it has proved unsuccessful, to
       conclude that a particular act or omission of counsel was
       unreasonable.” 466 U.S. at 689.


       {¶ 75} An attorney is presumed to be competent.      State v. Smith (1985), 17 Ohio

St.3d 98, 100, 477 N.E.2d 1128. An appellant bears the burden of proving his claim of

ineffective assistance of counsel.   Id.

       1.   Reference to Defendant’s Refusal to Give a Statement
       {¶ 76} As to the first claim, defendant asserts that the detective’s testimony that he

refused to give a written statement to the officer during his arrest violated due process

under Doyle v.Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91.

       {¶ 77} After throughly reviewing this matter, we conclude that the reference to

defendant’s refusal to make a statement was a single, isolated comment which, in light of

the remaining evidence of defendant’s guilt, constituted harmless error.             State v.

Mallory, Cuyahoga App. No. 93736, 2010-Ohio-4249; State v. Sims, Cuyahoga App. No.

84090, 2005-Ohio-1978.       Therefore counsel did not err in failing to object to this

statement from Detective Legg.

       2. Failure to File a Motion to Suppress

       {¶ 78} As to the claim that defendant’s trial counsel did not file a motion to

suppress evidence obtained during the warrantless arrest, we note that counsel does not

perform ineffectively by failing to file futile motions, and is not ineffective for failing to

file a motion to suppress evidence when there is no reasonable probability that the motion

would be granted. See State v. Martin (1983), 20 Ohio App.3d 172, 174, 485 N.E.2d 717;

State v. Gibson (1980), 69 Ohio App.2d 91, 430 N.E.2d 954; State v. Means (June 30,

1994), Cuyahoga App. No. 65744.       Where the record is devoid of facts to indicate that a

motion to suppress would have been granted, a claim for ineffective assistance of counsel

on this basis must fail. Id.; State v. Woolum (1976), 47 Ohio App.2d 313, 354 N.E.2d

712.
       {¶ 79} Although the Fourth Amendment generally prohibits warrantless searches,

one of the exceptions to the warrant requirement is a Terry search.         Terry v. Ohio

(1968), 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889. Under Terry, a police officer may

perform a patdown search for weapons where the officer reasonably concludes that

criminal activity may be afoot and that the persons with whom he is dealing may be

armed and presently dangerous.        When performing a Terry patdown search for weapons,

the officers may “seize nonthreatening contraband when its incriminating nature is

‘immediately apparent’ to the searching officer through the sense of touch.” State v.

Cooper, Cuyahoga App. No. 82588, 2003-Ohio-6038.

       {¶ 80} Searches incident to arrest are broad in scope, and the police may fully

search an arrestee for weapons and contraband. State v. Ferman (1979), 58 Ohio St.2d

216, 389 N.E.2d 843.

       {¶ 81} In this matter, the police pursued defendant following the U-turn and chased

him after he abandoned the vehicle.       After Frisco and Greeenberg apprised the officers

that defendant was playing basketball nearby, and had robbed Frisco moments earlier, the

officers seized him and searched him incident to his arrest for armed robbery.

Therefore, the patdown and search of defendant’s pockets was reasonable and may be

justified as either a Terry stop or a search incident to arrest.    Counsel did not err in

failing to seek suppression herein.

       3. Admission of Hearsay as to Theft of Car
       {¶ 82} As to the admission of hearsay evidence that Simmons reported the vehicle

stolen, we note that this conviction has been reversed for insufficient evidence so we

recognize no prejudicially erroneous representation as to this count of the indictment.

       4. Failure to Object to Closing Argument

       {¶ 83} A prosecutor may jeopardize the integrity of a trial by commenting on a

criminal defendant’s decision not to testify, but the State is permitted to comment upon a

defendant’s failure to offer evidence in support of its case. State v. Collins, 89 Ohio

St.3d 524, 527-28, 2000-Ohio-231, 733 N.E.2d 1118.

       {¶ 84} In this matter, the challenged remarks were addressed to defendant’s failure

to offer proof in support of his case, but did not imply that the burden of proof should

shift to defendant. The remark was not improper, and counsel did not err in failing to

object to it.

       5.       Counsel Erred in Permitting Amendment of the Weapons Under
                       Disability Charge

       {¶ 85} Here defendant claims that his trial counsel erred in permitting the State to

amend the charge of having a weapon while under disability in order to assert the

culpable mental state of “recklessly” for the element of whether defendant was unaware

that his prior convictions prohibited him from possessing a firearm.

       {¶ 86} In State v. Johnson, 128 Ohio St.3d 107, 2010-Ohio-6301, 942 N.E.2d 347,

paragraph one of the syllabus, the Ohio Supreme Court held that a conviction for

violation of the offense of having weapons while under disability as defined by

R.C. 2923.13(A)(3) does not require proof of a culpable mental state for the element that
the offender is under indictment for or has been convicted of any offense involving the

illegal possession, use, sale, administration, distribution, or trafficking in any drug of

abuse.    Accord State v. Adams, Cuyahoga App. No. 93513, 2010-Ohio-4478.

         {¶ 87} Here, the charge of having a weapon while under disability tracked the

language of R.C. 2923.13, so the charge was not defective because it lacked the essential

element of recklessness.     Counsel therefore did not commit a prejudicial error in failing

to object to the amendment of this charge.

         {¶ 88} The claim of ineffective assistance of counsel is without merit.

         {¶ 89} Defendant’s convictions for tampering with evidence, having a weapon

while under disability, and possession of criminal tools are affirmed; the conviction for

receiving stolen property is reversed; the conviction for trafficking in more than the bulk

amount but less than five times the bulk amount of MDMA is modified to the lesser

included offense of trafficking under R.C. 2925.03(C); and the conviction for possession

of more than the bulk but less than five times the bulk amount of MDMA is modified to

the lesser included offense of drug possession under R.C. 2925.11(C). The matter is

remanded for resentencing.

         It is ordered that appellant recover from appellee 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.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

JAMES J. SWEENEY, J., and
LARRY A. JONES, J., CONCUR
