[Cite as State v. Middlebrooks, 2011-Ohio-4574.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                      :      JUDGES:
                                                   :
                                                   :     Hon. W. Scott Gwin, P.J.
                       Plaintiff-Appellee          :     Hon. John W. Wise, J.
                                                   :     Hon. Patricia A. Delaney, J.
-vs-                                               :
                                                   :     Case No. 2010 AP 08 0027
ANTONIO MIDDLEBROOKS                               :
                                                   :
                                                   :
                      Defendant-Appellant          :      OPINION



CHARACTER OF PROCEEDING:                               Appeal from the Tuscarawas County Court
                                                       of Common Pleas Case No. 2010 CR 01
                                                       003


JUDGMENT:                                              AFFIRMED

DATE OF JUDGMENT ENTRY:                                September 6, 2011


APPEARANCES:

For Plaintiff-Appellee:                                  For Defendant-Appellant:

RYAN DANIEL STYER 0069730                                KEITH O’CORN 0069834
MICHAEL JOSEPH ERNEST 0066627                            440 Polaris Parkway, Ste. 150
Tuscarawas County Prosecutor’s Office                    Westerville, Ohio 43082
125 E. High Avenue, P.O. Box 1007
New Philadelphia, Ohio 44663
[Cite as State v. Middlebrooks, 2011-Ohio-4574.]


Delaney, J.

        {¶1}     Defendant-Appellant, Antonio Middlebrooks, appeals from the judgment of

the Tuscarawas County Common Pleas Court, convicting him of one count of

possession of cocaine, a felony of the fifth degree, in violation of R.C. 2925.11. The

State of Ohio is Plaintiff-Appellee.

        {¶2}     In late July or early August of 2009, Appellant resided at the residence of

Daniel Weaver, at 716½ Fourth Street, New Philadelphia, Ohio.               Appellant slept

primarily in a big blue reclining chair in the living room. During the time that Appellant

lived there, he would provide Weaver with crack cocaine.

        {¶3}     For approximately two days during the summer, a man named John Biles

also resided in the residence. Biles was a friend of Appellant’s. Weaver stated that he

did not see Biles use or possess illegal drugs.

        {¶4}     Weaver was a regular user of crack cocaine at the time that Appellant

lived with him, but he did not keep crack on hand. He would smoke it as soon as he

purchased it. He did not have any cash and was unaware of $550.00 found in the blue

recliner where Appellant slept.

        {¶5}     A search warrant was executed on Weaver’s residence, wherein the

above-referenced cash was found along with a baggie of what appeared to be cocaine.

Upon further analysis, it was determined that the baggie contained 0.4 grams of

cocaine.

        {¶6}     On January 15, 2010, Detective Charles Willett of the New Philadelphia

Police Department interviewed Appellant.           Later that day, he attempted to arrest

Appellant in a Wendy’s restaurant in New Philadelphia. Appellant immediately dropped
Tuscarawas County, Case No. 2010 AP 08 0027                                          3


his food and ran upon sighting the detective. Appellant was subsequently apprehended

and indicted on one count of Trafficking in Cocaine, a violation of R.C. 2925.03(A)(1)

and one count of Possession of Cocaine, a violation of R.C. 2925.11(A). Prior to trial,

the trafficking charge was dismissed.

      {¶7}   After trial, wherein the State presented the testimony of Daniel Weaver,

Detective Mike Pierce, who was involved in the execution of the search warrant of

Weaver’s home, and Detective Charles Willett, who assisted in the search and in

apprehending Appellant, the jury found Appellant guilty of possession of cocaine.

      {¶8}   It is from this judgment that Appellant now appeals, and raises five

Assignments of Error:

      {¶9}    “I. THE INTRODUCTION OF PRIOR BAD ACT EVIDENCE AGAINST

APPELLANT THAT HE POSSESSED AND GAVE MR. WEAVER CRACK COCAINE IN

THE PAST VIOLATED EVID. R. 404(B), AND APPELLANT’S DUE PROCESS RIGHTS

UNDER THE FEDERAL AND OHIO CONSTITUTIONS.

      {¶10} “II. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED

PLAIN ERROR WHEN IT (1) INCLUDED A FLEEING INSTRUCTION IN THE JURY

CHARGE BUT (2) FAILED TO INCLUDE AN ACCOMPLICE INSTRUCTION OR THAT

POWDER       COCAINE     WAS    THE     ALLEGED     DRUG     POSSESSED       THEREBY

VIOLATING THE 5TH AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION AND

ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.

      {¶11} “III.   THE TRIAL COURT ERRED BY CONVICTING APPELLANT OF

POSSESSION OF DRUGS AS A FELONY OF THE FIFTH DEGREE WHEN THE
Tuscarawas County, Case No. 2010 AP 08 0027                                                4


VERDICT FORM AT MOST SUPPORTED A CONVICTION FOR A MISDEMEANOR

OF THE FIRST DEGREE UNDER R.C. 2945.75(A)(2).

       {¶12} “IV. APPELLANT’S CONVICTION WAS BOTH AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY THE SUFFICIENCY

OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH

AMENDMENT TO THE CONSTITUTION, ARTICLE I, SECTIONS 1, 10 & 16 OF THE

OHIO CONSTITUTION.

       {¶13} “V.      TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF

COUNSEL IN VIOLATION OF THE 6TH AMENDMENT TO THE U.S. CONSTITUTION

AND ARTICLE I, SECTIONS 10, 16 OF THE OHIO CONSTITUTION.”

                                             I.

       {¶14} In his first assignment of error, Appellant argues that it was error for the

trial court to allow the introduction of other acts evidence against Appellant.

       {¶15} The admission or exclusion of evidence rests within the sound discretion

of the trial court.    Moreover, a determination as to whether evidence is unfairly

prejudicial is left to the sound discretion of the trial court and will be overturned only if

the discretion is abused. State v. Robb (2000), 88 Ohio St.3d 59, 68, 723 N.E.2d 1019.

“As a legal term, ‘prejudice’ is simply “[d]amage or detriment to one's legal rights or

claims.” Black's Law Dictionary (8th Ed.1999) 1218.

       {¶16} Extrinsic acts may not typically be used to suggest that the accused has

the propensity to act in a certain manner. Evid.R. 404; State v. Smith (1990), 49 Ohio

St.3d 137, 140, 551 N.E.2d 190. However, there are exceptions. Evid.R. 404(B) allows

such evidence where it is offered to show “motive, opportunity, intent, preparation, plan,
Tuscarawas County, Case No. 2010 AP 08 0027                                               5


knowledge, identity, or absence of mistake or accident.” Additionally, R.C. 2945.59

provides, “In any criminal case in which the defendant's motive or intent * * * is material,

any acts of the defendant which tend to show his motive or intent, the absence of

mistake or accident on his part, or the defendant's scheme, plan, or system in doing the

act in question may be proved, whether they are contemporaneous with or prior or

subsequent thereto, notwithstanding that such proof may show or tend to show the

commission of another crime by the defendant.”

       {¶17} In determining whether the admission of other acts evidence is unduly

prejudicial, we must consider whether the evidence is offered for a proper purpose, ie.,

whether it is relevant; whether, when engaging in a 403 balancing, the probative value

of the evidence substantially outweighs any potential for unfair prejudice; and whether

the jury, upon request, is instructed that the evidence is only to be considered for the

proper purpose for which the evidence was admitted. Huddleston v. United States

(1988), 485 U.S. 681, 108 S.Ct. 1496.

       {¶18} Appellant objects to evidence elicited from the State through the testimony

of Daniel Weaver that Appellant supplied Weaver with crack cocaine. We do not find

that this evidence was presented to show that Appellant was a drug dealer. Rather, it

was used to show the prior relationship between Appellant and Weaver and their

relationship at the time that the drugs were found. See State v. Simpson, 8th Dist.

No.89158 , 2008-Ohio-3817.

       {¶19} Accordingly, Appellant’s first assignment of error is overruled.
Tuscarawas County, Case No. 2010 AP 08 0027                                              6


                                                II.

       {¶20} In Appellant’s second assignment of error, he argues that the trial court

erred in failing to include an accomplice instruction or a clarification that Appellant was

charged with possession “powder” cocaine. He also argues that the trial court erred by

including a fleeing instruction. We disagree.

       {¶21} Ohio courts have affirmed the use of an instruction on flight as evidence of

consciousness of guilt. State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d

151; State v. Alexander (Feb. 26, 1987), 8th Dist. No. 51784.

       {¶22} Appellant fled immediately upon seeing Detective Willett at Wendy’s. He

had spoken with the detective earlier in the day, so it is reasonable to conclude that he

knew why Detective Willett was looking for him. As such, the flight instruction was

appropriate.

       {¶23} Regarding Appellant’s contention that instructions on being an accomplice

and on the type of cocaine that he was alleged to have possessed should have been

included, we would note that Appellant did not object to the jury instructions given to the

jury. Moreover, Appellant has failed to indicate at what point in the record defense

counsel asked for these instructions as required by App. R. 16(A)(7).

       {¶24} We will address Appellant’s argument under a plain error standard of

review. State v. Hill (2001), 92 Ohio St.3d 191, 196, 749 N.E.2d 274, 279; Crim. R.

52(B). “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution,

under exceptional circumstances and only to prevent a manifest miscarriage of justice.”

State v. Long (1978), 53 Ohio St.2d 91, paragraph three of the syllabus, 372 N.E.2d

804. Plain error will not be found absent a showing by Appellant that “but for the error,
Tuscarawas County, Case No. 2010 AP 08 0027                                               7

the outcome of the trial clearly would have been otherwise.” State v. Williams, 99 Ohio

St.3d 439, 458, 2003-Ohio-4164, at ¶ 40, quoting Long, supra, at paragraph two of the

syllabus.

       {¶25} The judge instructed the jury on possession of cocaine. Appellant has

failed to offer a reason as to why a distinction should be made regarding whether

Appellant possessed powder or crack cocaine. As such, we find no error, plain or

otherwise, in not including this instruction.

       {¶26} Moreover, we find no error in the trial court’s decision not to sua sponte

include an instruction on accomplice liability. No evidence was presented that Daniel

Weaver possessed the cocaine at issue in this case.

       {¶27} Appellant’s second assignment of error is overruled.

                                                III.

       {¶28} In his third assignment of error, Appellant argues that the court erred by

convicting Appellant of possession of drugs, a felony of the fifth degree, because the

verdict form was defective pursuant to R.C. 2945.75(A)(2). We disagree.

       {¶29} R.C. 2945.75(A)(2) provides:

       {¶30} “When the presence of one or more additional elements makes an offense

one of more serious degree[,] * * * [a] guilty verdict shall state either the degree of the

offense of which the offender is found guilty, or that such additional element or elements

are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree

of the offense charged.”

       {¶31} Appellant additionally argues that under State v. Pelfrey, 112 Ohio St.3d

422, 2007-Ohio-256, 860 N.E.2d 735, the verdict form must either include the degree of
Tuscarawas County, Case No. 2010 AP 08 0027                                            8


the offense or a statement that an aggravating element has been found to justify

convicting him of a greater degree of a criminal offense. In the present case, Appellant

asserts therefore that the verdict form did not specify the level of the offense, the

section of the revised code that was violated, and/or an additional element that would

raise the level of offense.

       {¶32} Appellant was charged with possession of drugs in violation of R.C.

2925.11. There is no “catch-all” provision for this code section, as Appellee points out.

R.C. 2925.11. Merely because there are different levels of offenses contained within

one statute does not mean that the statute is subject to the language of R.C. 2945.75.

See State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735.

       {¶33} Each separate drug offense has a lowest level of offense. The lowest

level of offense for possession of cocaine is a felony of the fifth degree. R.C. 2925.11.

The misdemeanor provision of R.C. 2925.11 applies only to schedule III, IV, and V

drugs. R.C. 2925.11(C)(2)(a). Cocaine is not a schedule III, IV, or V drug.     State v.

Pace, 10th Dist. No. 10AP-547, 2011-Ohio-1335.

       {¶34} Accordingly, we do not find the verdict form to have been signed in

contradiction to R.C. 2945.75 or Pelfrey. State v. Pace, 10th Dist. No. 10AP-547, 2011-

Ohio-1335.

       {¶35} Appellant’s third assignment of error is overruled.
Tuscarawas County, Case No. 2010 AP 08 0027                                             9


                                               IV.

       {¶36} In Appellant’s fourth assignment of error, he argues that his conviction

was not supported by sufficient evidence and that it was against the manifest weight of

the evidence.

       {¶37} When reviewing a claim of sufficiency of the evidence, an appellate court’s

role is to examine the evidence admitted at trial to determine whether such evidence, if

believed, would convince the average mind of the defendant's guilt beyond a

reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492. Contrary

to a manifest weight argument, a sufficiency analysis raises a question of law and does

not allow the court to weigh the evidence. State v. Martin (1983), 20 Ohio App.3d 172,

175. 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. Thompkins, 78 Ohio St.3d 380,

386, 1997-Ohio-52, 678 N.E.2d 541.

       {¶38} Conversely, when analyzing a manifest weight claim, this court sits as a

“thirteenth juror” and in reviewing the entire record, “weighs the evidence and all

reasonable inferences, considers the credibility of witnesses, and determines whether in

resolving conflicts in the evidence, the jury clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed.”           State v.

Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541, 548, quoting State v.

Martin (1983), 20 Ohio App.3d 172, 175.

       {¶39} In order to convict Appellant of possession of drugs, the State had to

prove that Appellant knowingly possessed illegal drugs, in this case, cocaine. When
Tuscarawas County, Case No. 2010 AP 08 0027                                          10


viewing the evidence in the light most favorable to the prosecution, we find that

sufficient evidence was presented to support Appellant’s conviction. Possession can be

either actual or constructive. Constructive possession exists when a person knowingly

exercises dominion and control over an object, even though the object might not be

within his immediate possession. State v. Hankerson (1985), 70 Ohio St.2d 87, 434

N.E.2d 1362.

       {¶40} Weaver testified that Appellant lived in Weaver’s house and that he slept

almost exclusively in the blue recliner in the living room. When the search warrant was

executed, the officers found $550.00 in the chair. Weaver said he had no knowledge of

the money that was in the chair. Officers also found cocaine in a baggie in that chair.

Moreover, evidence was presented that Appellant fled upon finding out that he was

about to be arrested.

       {¶41} Moreover, Appellant has not pointed us to any evidence indicating that the

jury lost its way. The trier of fact was within its purview to weigh the credibility of

witnesses and to find that Appellant possessed cocaine.

       {¶42} Appellant’s fourth assignment of error is overruled.

                                               V.

       {¶43} In Appellant’s fifth assignment of error, he argues that he did not receive

the effective assistance of counsel at trial. We disagree.

       {¶44} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that his trial counsel acted incompetently.

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052. In assessing such

claims, “a court must indulge a strong presumption that counsel’s conduct falls within
Tuscarawas County, Case No. 2010 AP 08 0027                                           11


the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action ‘might

be considered sound trial strategy.’” Id. at 689, quoting Michel v. Louisiana (1955), 350

U.S. 91, 101, 76 S.Ct. 158, 164.

       {¶45} “There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client in

the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted

“outside the wide range of professionally competent assistance.” Id. at 690.

       {¶46} Even if a defendant shows that his counsel was incompetent, the

defendant must then satisfy the second prong of the Strickland test. Under this “actual

prejudice” prong, the defendant must show that “there is a reasonable probability that,

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

different.” Strickland, 466 U.S. at 694.

       {¶47} When counsel’s alleged ineffectiveness involves the failure to pursue a

motion or legal defense, this actual prejudice prong of Strickland breaks down into two

components.      First, the defendant must show that the motion or defense “is

meritorious,” and, second, the defendant must show that there is a reasonable

probability that the outcome would have been different if the motion had been granted

or the defense pursued. See Kimmelman v. Morrison (1986), 477 U.S. 365, 375, 106

S.Ct. 2574, 2583; see, also, State v. Santana (2001), 90 Ohio St.3d 513, 739 N.E.2d

798 citing State v. Lott (1990), 51 Ohio St.3d 160, 555 N.E.2d 293.

       {¶48} A claim of trial counsel ineffectiveness usually will be unreviewable on

appeal because the appellate record is inadequate to determine whether the omitted
Tuscarawas County, Case No. 2010 AP 08 0027                                            12


objection or motion really had merit and/or because the possible reasons for counsel’s

actions appear outside the appellate record. United States v. Galloway (C.A.10, 1995),

56 F.3d 1239, 1240 (en banc) (“Such claims brought on direct appeal are presumptively

dismissible, and virtually all will be dismissed.”; “A factual record must be developed in

and addressed by the district court in the first instance for effective review.”). No

interlocutory remand will be allowed to develop the record. Id.

       {¶49} Ohio law similarly recognizes that error cannot be recognized on appeal

unless the appellate record actually supports a finding of error. A defendant claiming

error has the burden of proving that error by reference to matters in the appellate

record. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, 400 N.E.2d

384. “[T]here must be sufficient basis in the record * * * upon which the court can

decide that error.” Hungler v. Cincinnati (1986), 25 Ohio St.3d 338, 342 (emphasis sic).

       {¶50} In Massaro v. United States (2003), 538 U.S. 500, 123 S.Ct. 1690, 155

L.Ed.2d 714, the United States Supreme Court emphasized the general unreviewability

of trial counsel ineffectiveness claims on direct appeal.

       {¶51} “When an ineffective-assistance claim is brought on direct appeal,

appellate counsel and the court must proceed on a trial record not developed precisely

for the object of litigating or preserving the claim and thus often incomplete or

inadequate for this purpose. * * *

       {¶52} “The evidence introduced at trial * * * will be devoted to issues of guilt or

innocence, and the resulting record in many cases will not disclose the facts necessary

to decide either prong of the Strickland analysis. * * *
Tuscarawas County, Case No. 2010 AP 08 0027                                              13


       {¶53} “If the alleged error is one of commission, the record may reflect the action

taken by counsel but not the reasons for it. The appellate court may have no way of

knowing whether a seemingly unusual or misguided action by counsel had a sound

strategic motive or was taken because the counsel’s alternatives were even worse. * * *

The trial record may contain no evidence of alleged errors of omission, much less the

reasons underlying them.” Massaro, supra.

       {¶54} Appellant first argues that counsel was ineffective because it failed to

object to the admission of a State’s exhibit of the controlled substance on the grounds

that the State did not establish chain of custody. The reasoning for counsel’s failure to

object is a matter outside of the record, and therefore is not ripe for review. However,

we would note that issues surrounding chain of custody go to weight, not admissibility of

evidence. State v. Justice, 5th Dist. No.10 CA 41, 2011-Ohio-4004, citing State v.

Blevins (1987), 36 Ohio App.3d 147, 521 N.E.2d 1105.

       {¶55} Appellant next argues that counsel was ineffective for failing to request an

instruction related to “powder” cocaine. Again, this is a matter outside of the record and

therefore not appropriate for review on direct appeal. However, we would note that the

jury instruction given to the jury was an accurate reflection of the law, and no error could

be found in submitting such an instruction to the jury.

       {¶56} Finally, Appellant argues that counsel was ineffective for failing to object

to testimony that Appellant was expected to be found at Weaver’s residence upon the

execution of the search warrant.      Appellant has failed to state how this prejudiced

Appellant’s case. Moreover, this is a matter again, that is outside of the record, and

therefore not appropriate for review on direct appeal.
Tuscarawas County, Case No. 2010 AP 08 0027                                          14


       {¶57} Based on the foregoing, we do not find that Appellant has demonstrated

ineffective assistance of counsel, nor has he demonstrated that any of counsel’s actions

or inactions prejudiced him so that the outcome of the trial would have been different

but for counsel’s actions.

       {¶58} Appellant’s fifth assignment of error is overruled.

       {¶59} For the foregoing reasons, the judgment of the Tuscarawas County Court

of Common Pleas is affirmed.

By: Delaney, J.

Gwin, P.J. and

Wise, J. concur.



                                         HON. PATRICIA A. DELANEY



                                         HON. W. SCOTT GWIN



                                         HON. JOHN W. WISE
[Cite as State v. Middlebrooks, 2011-Ohio-4574.]


           IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      :
                                                   :
                       Plaintiff-Appellee          :
                                                   :
                                                   :
-vs-                                               :    JUDGMENT ENTRY
                                                   :
ANTONIO MIDDLEBROOKS                               :
                                                   :
                      Defendant-Appellant          :    Case No. 2010 AP 08 0027
                                                   :




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Tuscarawas County Court of Common Pleas is affirmed.                Costs

assessed to Appellant.



                                                       _________________________________
                                                       HON. PATRICIA A. DELANEY


                                                       _________________________________
                                                       HON. W. SCOTT GWIN


                                                       _________________________________
                                                       HON. JOHN W. WISE
