[Cite as State v. Driscol, 2014-Ohio-5608.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


STATE OF OHIO,                                       :          OPINION

                 Plaintiff-Appellee,                 :
                                                                CASE NO. 2013-L-129
        - vs -                                       :

CHARLES DRISCOL,                                     :

                 Defendant-Appellant.                :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 13 CR
000262.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Michael P. Maloney, 24441 Detroit Road, #300, Westlake, OH 44145 (For Defendant-
Appellant).



COLLEEN MARY O’TOOLE, J.

        {¶1}     Appellant, Charles Driscol, appeals from the November 25, 2013 judgment

of the Lake County Court of Common Pleas, sentencing him for trafficking in heroin,

possession of heroin, tampering with evidence, and possessing criminal tools following

a jury trial.1 On appeal, appellant challenges the sufficiency of the evidence regarding


1. Appellant additionally appeals from the trial court’s October 17, 2013 judgment, deferring sentencing
and referring the matter to the Adult Probation Department following the jury’s guilty verdict.
the trafficking in heroin counts and the representation of his trial counsel.              For the

reasons that follow, we affirm.

        {¶2}     On July 22, 2013, appellant was indicted by the Lake County Grand Jury

on seven counts: count one, trafficking in heroin, a felony of the first degree, in violation

of R.C. 2925.03(A)(1); count two, trafficking in heroin, a felony of the second degree, in

violation of R.C. 2925.03(A)(2), with a forfeiture specification; count three, possession of

heroin, a felony of the second degree, in violation of R.C. 2925.11, with a forfeiture

specification; count four, tampering with evidence, a felony of the third degree, in

violation of R.C. 2921.12(A)(1); count five, possessing criminal tools, a felony of the fifth

degree, in violation of R.C. 2923.24, with a forfeiture specification; count six, possession

of heroin, a felony of the third degree, in violation of R.C. 2925.11, with forfeiture

specifications; and count seven, possessing criminal tools, a felony of the fifth degree,

in violation of R.C. 2923.24, with forfeiture specifications.2 Appellant waived the right to

be present at his arraignment and the trial court entered a not guilty plea to all charges

on his behalf.

        {¶3}     A jury trial commenced on October 7, 2013. Twelve witnesses testified for

appellee, the state of Ohio. They collectively established that appellant was involved in

a drug transaction at Pine Ridge Apartments in Willoughby Hills, Lake County, Ohio, on

March 21, 2013.

        {¶4}     During the execution of a search warrant at Room 523, police seized

heroin from resident Trevaughn Patterson (“Patterson”).                    Patterson was arrested.

Detective Donald Dondrea (“Detective Dondrea”) testified that Patterson cooperated



2. Count one was later amended to reflect a felony of the second degree.


                                                   2
with police and made a controlled phone call to his supplier, “ATL.” During this call,

Patterson ordered more heroin to be delivered to his fifth floor apartment that afternoon.

      {¶5}    Members of various law enforcement agencies in Lake County were

involved in this operation and waited for “ATL” to arrive at Pine Ridge Apartments.

Some officers blocked exits of the apartment building.          Other officers, including

Detective Dondrea and Lieutenant Jonathan Bush (“Lieutenant Bush”), waited on a fifth

floor hallway.   Additional officers, including Detectives Ronald Parmertor (“Detective

Parmertor”) and Donald Moreland (“Detective Moreland”), were in a fourth floor

apartment with Toby Ingram (“Ingram”), maintenance director of Pine Ridge

Apartments, watching Room 523 from a live monitor.

      {¶6}    A short time after the controlled call, a man wearing a red baseball cap

and a black hoodie (later identified as appellant) arrived in a Cadillac at the apartment

complex. Video surveillance captured him entering the back of the building. His female

passenger, Lakisha Williams (“Williams”), appellant’s live-in girlfriend, waited for him in

the car. Lieutenant Pat Hengst (“Lieutenant Hengst”) radioed officers that the man was

headed upstairs. Detective Dondrea and Lieutenant Bush indicated that as soon as the

man saw the officers through the fifth floor stairwell window, he took off running up the

stairs. As a result, a chase ensued.

       {¶7}   On the eighth floor, Detective Dondrea and Lieutenant Bush observed the

man on his tiptoes with his hands raised in the air. Detective Dondrea radioed other

officers that the man had placed something above the ceiling tile near the exit sign by

Room 801. The chase continued down the hall. Detective Dondrea and Lieutenant

Bush lost the man in the stairwell. However, within minutes, the man (identified at this




                                            3
point as appellant) was arrested on the sixth floor. Detectives Dondrea, Parmertor, and

Moreland as well as Lieutenant Bush all testified that appellant was tired, sweating, and

out of breath. Appellant had no heroin in his possession and was not wearing the red

baseball cap or the black hoodie when he was arrested.

       {¶8}   In the meantime, Officer Anthony Mino (“Officer Mino”) secured the

Cadillac driven by appellant. He ordered Williams, who was waiting for appellant in the

passenger seat, to exit the vehicle. Officer Mino calmed her down and explained what

was happening. Williams consented to a search of her and appellant’s home at the

scene and again later at the station. Williams signed a consent to search form. She

provided officers with directions and a key to their home where contraband was later

found, including heroin, digital scales, and cash in the couples’ bedroom. Williams also

told police at the station, several days after the incident at issue, that appellant went to

Pine Ridge Apartments to sell heroin.

       {¶9}   Following appellant’s arrest, officers discovered two baggies containing

heroin in the drop ceiling near Room 801 (the spot where appellant was earlier seen on

his tiptoes with his hands raised in the air during the police chase.) Also, Lieutenant

Bush later went back to Patterson’s fifth floor apartment. Lieutenant Bush saw a black

string hanging down from the ceiling. He popped open the ceiling tile and found a red

baseball cap and a black hoodie.

       {¶10} When questioned, appellant told Detectives Parmertor and Moreland that

he went to Pine Ridge Apartments to visit a girl named “Keisha” in Room 237. The

detectives told appellant that Room 237 did not exist in the apartment building.

Appellant then stated it was Room 231 instead. However, Room 231 also does not




                                             4
exist in the building. Detective Parmertor testified that appellant told authorities he went

to the apartment complex to buy marijuana from Patterson but denied any heroin

involvement. Detective Parmertor further testified that appellant admitted putting his

clothing above the ceiling tile.

       {¶11} Lieutenant Hengst took a picture of appellant and showed it to Patterson.

Patterson identified the man in the photo as “ATL,” his heroin supplier. In addition,

Lieutenant Hengst used his own phone and called the number that Patterson used to

order the heroin. Appellant’s phone rang and Lieutenant Hengst’s number displayed on

appellant’s phone.

       {¶12} At the close of the state’s case, appellant’s counsel moved for an acquittal

pursuant to Crim.R. 29, which was overruled by the trial court. Appellant did not present

any witnesses and did not take the stand in his own defense.

       {¶13} Following trial, the jury found appellant guilty on all seven counts. On

October 17, 2013, the trial court deferred sentencing and referred the matter to the

Adult Probation Department for a pre-sentence investigation and report. On November

25, 2013, the trial court ordered the following sentence: four years in prison on count

one; four years on count two; count three merged with count two; 24 months on count

four; 10 months on count five; 24 months on count six; and 10 months on count seven.

Counts two, four, five, six, and seven were ordered to run concurrent with each other

but consecutive to count one for a total prison term of eight years. Appellant was given

61 days of credit for time already served. The court further notified appellant that post-

release control is mandatory for three years. Appellant timely appealed. He asserts the

following two assignments of error:




                                             5
       {¶14} “[1.] The trial court erred in denying appellant’s Criminal Rule 29 motion

for acquittal when there was insufficient evidence of identification.

       {¶15} “[2.] Appellant was denied effective assistance of counsel and a fair trial

as trial counsel’s legal service fell below the standard of reasonable representation.”

       {¶16} In his first assignment of error, appellant argues the trial court erred in

denying his Crim.R. 29 motion for acquittal because there was insufficient evidence that

he was the heroin trafficker.

       {¶17} With regard to sufficiency, in State v. Bridgeman, 55 Ohio St.2d 261

(1978), the Ohio Supreme Court established the test for determining whether a Crim.R.

29 motion for acquittal is properly denied. The Court stated that “[p]ursuant to Crim.R.

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.”             Id. at syllabus.

“Thus, when an appellant makes a Crim.R. 29 motion, he or she is challenging the

sufficiency of the evidence introduced by the state.” State v. Patrick, 11th Dist. Trumbull

Nos. 2003-T-0166 and 2003-T-0167, 2004-Ohio-6688, ¶18.

       {¶18} As this court stated in State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994

Ohio App. LEXIS 5862, *13-14 (Dec. 23, 1994):

       {¶19} “‘Sufficiency’ challenges whether the prosecution has presented evidence

on each element of the offense to allow the matter to go to the jury, while ‘manifest

weight’ contests the believability of the evidence presented.

       {¶20} “‘“* * * The test (for sufficiency of the evidence) is whether after viewing

the probative evidence and the inference[s] drawn therefrom in the light most favorable




                                             6
to the prosecution, any rational trier of fact could have found all of the elements of the

offense beyond a reasonable doubt.         The claim of insufficient evidence invokes an

inquiry about due process. It raises a question of law, the resolution of which does not

allow the court to weigh the evidence.”’

      {¶21} “In other words, the standard to be applied on a question concerning

sufficiency is: when viewing the evidence ‘in a light most favorable to the prosecution,’

‘(a) reviewing court (should) not reverse a jury verdict where there is substantial

evidence upon which the jury could reasonably conclude that all of the elements of an

offense have been proven beyond a reasonable doubt.’” (Emphasis sic.) (Citations

omitted.)

      {¶22} “[A] reviewing court must look to the evidence presented * * * to assess

whether the state offered evidence on each statutory element of the offense, so that a

rational trier of fact may infer that the offense was committed beyond a reasonable

doubt.” State v. March, 11th Dist. Lake No. 98-L-065, 1999 Ohio App. LEXIS 3333, *8

(July 16, 1999).    The evidence is to be viewed in a light most favorable to the

prosecution when conducting this inquiry. State v. Jenks, 61 Ohio St.3d 259, paragraph

two of the syllabus (1991). “Circumstantial evidence and direct evidence inherently

possess the same probative value and therefore should be subjected to the same

standard of proof.” Id. at paragraph one of the syllabus. Further, the verdict will not be

disturbed on appeal unless the reviewing court finds that reasonable minds could not

have arrived at the conclusion reached by the trier of fact. State v. Dennis, 79 Ohio

St.3d 421, 430 (1997).




                                             7
       {¶23} In this case, appellant alleges the state failed to present sufficient

evidence with respect to his identity as the heroin trafficker at the Pine Ridge

Apartments on March 21, 2013. Upon review, we disagree.

       {¶24} Regarding this assignment, appellant was charged with trafficking in

heroin, in violation of R.C. 2925.03, which states:

       {¶25} “(A) No person shall knowingly do any of the following:

       {¶26} “(1) Sell or offer to sell a controlled substance or a controlled substance

analog;

       {¶27} “(2) Prepare for shipment, ship, transport, deliver, prepare for distribution,

or distribute a controlled substance or a controlled substance analog, when the offender

knows or has reasonable cause to believe that the controlled substance or a controlled

substance analog is intended for sale or resale by the offender or another person.”

       {¶28} This is not a case where reliability of eye witness testimony is at issue.

Rather, the testimony and evidence presented by the state at the jury trial clearly

establishes and identifies appellant as the man that went to Pine Ridge Apartments to

sell and deliver heroin to Patterson on the date at issue.

       {¶29} As stated, video surveillance captured the man (later identified as

appellant) wearing a red baseball cap and a black hoodie, entering the back of the

apartment building.    Lieutenant Hengst radioed officers that appellant was headed

upstairs.   Detective Dondrea and Lieutenant Bush waited on a fifth floor hallway.

Detectives Parmertor and Moreland were in a fourth floor apartment with Ingram, the

apartment maintenance director, watching Room 523 from a live monitor.




                                             8
       {¶30} A chase ensued after appellant took off running as a result of seeing

Detective Dondrea and Lieutenant Bush through the fifth floor stairwell window. On the

eighth floor, Detective Dondrea and Lieutenant Bush observed appellant on his tiptoes

with his hands raised in the air. Detective Dondrea radioed other officers that the man

had placed something above the ceiling tile near the exit sign by Room 801. The chase

continued down the hall. The officers lost appellant in the stairwell. However, within

minutes, appellant was arrested on the sixth floor. Detectives Dondrea, Parmertor, and

Moreland as well as Lieutenant Bush all testified that appellant was tired, sweating, and

out of breath.

       {¶31} Appellant correctly points out that heroin was not found on his person at

the time of his arrest. However, following his arrest, officers discovered two baggies

containing heroin in the drop ceiling near Room 801 (the spot where appellant was

earlier seen on his tiptoes with his hands raised in the air during the police chase.)

       {¶32} Appellant also correctly points out that he was not wearing a red baseball

cap and a black hoodie at the time of his arrest. However, Lieutenant Bush later found

the red baseball cap and the black hoodie in the drop ceiling in Patterson’s fifth floor

apartment. Appellant admitted putting his clothing above the ceiling tile in Patterson’s

apartment.

       {¶33} Also, appellant told authorities he went to the apartment complex to buy

marijuana from Patterson and to visit a girl named “Keisha.”               However, when

questioned, appellant provided the officers with not one, but two room numbers that did

not exist in the apartment building.




                                             9
       {¶34} In addition, Lieutenant Hengst took a picture of appellant and showed it to

Patterson. Patterson identified the man in the photo as “ATL,” his heroin supplier. Also,

Lieutenant Hengst used his own phone and called the number that Patterson used to

order the heroin. Appellant’s phone rang and Lieutenant Hengst’s number displayed on

appellant’s phone.

       {¶35} Finally, Williams, appellant’s live-in girlfriend, consented to a search of

their home where contraband was later found, including heroin, digital scales, and cash

in the couples’ bedroom. Williams also told police that appellant went to Pine Ridge

Apartments to sell heroin.

       {¶36} Pursuant to Schlee, supra, there is sufficient evidence upon which the jury

could reasonably conclude beyond a reasonable doubt that appellant was the heroin

trafficker and that the elements of R.C. 2925.03(A)(1) and (2) were proven. Therefore,

the trial court did not err in overruling appellant’s Crim.R. 29 motion.

       {¶37} Appellant’s first assignment of error is without merit.

       {¶38} In his second assignment of error, appellant contends he was denied

effective assistance and a fair trial because his trial counsel’s legal service fell below the

standard of reasonable representation.

       {¶39} With respect to an ineffective assistance of counsel claim, this court stated

in State v. Henry, 11th Dist. Lake No. 2007-L-142, 2009-Ohio-1138, ¶50-52:3

       {¶40} “Preliminarily, we note that Strickland v. Washington (1984), 466 U.S. 668,

687 * * * states:

       {¶41} “‘(a) convicted defendant’s claim that counsel’s assistance was so

defective as to require reversal of a conviction (* * *) has two components. First, the

3. See also State v. Peoples, 11th Dist. Lake No. 2005-L-158, 2010-Ohio-2523, ¶17-30.


                                                 10
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.’

       {¶42} “‘(* * *) When a convicted defendant complains of the ineffectiveness of

counsel’s assistance, the defendant must show that counsel’s representation fell below

an objective standard of reasonableness.’ Id. at 687-688. State v. Bradley (1989), 42

Ohio St.3d 136, 142 * * *, quoting Strickland, supra, at 694, states: ‘(t)o warrant

reversal, “(t)he 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.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome.”’ (Parallel citations omitted.)

       {¶43} “Trial tactics (including a failure to object) do not substantiate a claim of

ineffective assistance of counsel.” Henry, supra, at ¶78.

       {¶44} In the case at bar, appellant alleges his trial counsel was ineffective for

failing to challenge the search of his home. However, the record before us reveals that

Williams, appellant’s live-in girlfriend, voluntarily consented to the search where heroin,

digital scales, and cash were found inside a shoe box underneath the couples’ bed.

Appellant concedes that Williams had authority to consent to the search. Nevertheless,




                                            11
appellant maintains his trial counsel should have challenged Williams’ consent with a

motion to suppress on the basis that it was not intelligent and voluntary because it was

given at gunpoint. At oral arguments, appellant’s counsel raised the issue of standing

and surmised that Williams’ consent may have resulted from police coercion.           The

record before us, however, does not substantiate such a claim.

      {¶45} Pursuant to the Fourth Amendment to the United States Constitution, a

co-occupier of a residence, like appellant in the instant matter, has standing to object to

a search of the premises. State v. Bailey, 6th Dist. Lucas No. 7965, 1975 Ohio App.

LEXIS 8331, *4 (Nov. 14, 1975). However, this case, like Bailey, involves the law and

factual issues pertaining to third-party consent. Id. “A joint occupant [like Williams in

the case at bar] may voluntarily give consent to a search of the premises and effects.

The common authority or other sufficient relationship to the premises or effects is valid

as against the absent, non-consenting person with whom that authority is shared.” Id.,

citing United State v. Matlock, 415 U.S. 164 (1974); Frazier v. Cupp, 394 U.S. 731

(1969); Schneckloth v. Bustamonte, 412 U.S. 218 (1973); White v. United States, 444

F.2d. 724 (10th Cir.1991); State v. McCarthy, 26 Ohio St.2d 87 (1971).

      {¶46} “The decision whether this third-party consent was voluntary or was the

produc[t] of duress or coercion however expressed is a question for the trier of the facts

determined from the totality of all the circumstances. See Schneckloth v. Bustamonte,

supra; State v. Wingard (1974), 40 Ohio App.2d 236. Where the decision is supported

by substantial evidence it will not be reversed by an appellate court, State v. Wingard,

supra; Burge v. United States (1964), 332 F.2d 171.” Bailey, supra, at *5.




                                            12
      {¶47} “A search conducted pursuant to a valid consent is constitutionally

permissible.” Bainbridge v. Kaseda, 11th Dist. Geauga No. 2007-G-2797, 2008-Ohio-

2136, ¶28, citing Bustamonte, supra, at 219. As stated, “the proper test is whether the

totality of the circumstances demonstrates that the consent was voluntary.” Kaseda at

¶28, citing State v. McConnell, 5th Dist. Stark No. 2002CA00048, 2002-Ohio-5300, ¶8.

“The state has the burden to prove consent was freely and voluntarily given by clear

and convincing evidence.” Kaseda at ¶28, citing State v. Robinette, 80 Ohio St.3d 234,

243 (1997).

      {¶48} This court has also held that “[w]hether a consent to search was voluntary

or was the product of duress or coercion, either express or implied, is a question of fact

to be determined from the totality of the circumstances.”       State v. Lett, 11th Dist.

Trumbull No. 2008-T-0116, 2009-Ohio-2796, ¶32. “Relevant factors for the trial court to

consider in determining whether a consent was voluntary include the following: (1) the

suspect’s custodial status and the length of the initial detention; (2) whether the consent

was given in public or at a police station; (3) the presence of threats, promises, or

coercive police procedures; (4) the words and conduct of the suspect; (5) the extent and

level of the suspect’s cooperation with the police; (6) the suspect’s awareness of his

right to refuse to consent and his status as a ‘newcomer to the law’; and (7) the

suspect’s education and intelligence.” Id. at ¶33. (Citations omitted.)

      {¶49} “‘When claiming ineffective assistance due to failure to file or pursue a

motion to suppress, an appellant must point to evidence in the record showing there

was a reasonable probability the result of trial would have differed if the motion had

been filed or pursued.’” State v. Weimer, 11th Dist. Lake No. 2013-L-008, 2013-Ohio-




                                            13
5651, ¶38, quoting State v. Walker, 11th Dist. Lake No. 2009-L-155, 2010-Ohio-4695,

¶15.

       {¶50} At the time of the jury trial, Williams was a 32-year-old mother of five. She

is a high school graduate and is employed as a home health aide.               There was

competent, credible evidence that Williams’ consent to search was voluntary and

intelligent. Her repeated cooperation throughout the proceedings demonstrates that the

success of a suppression motion/hearing was not a reasonable probability. Williams

herself testified at the trial, in which she was subject to cross-examination, that she

consented to the search. Her detention outside the apartment complex (while police

were chasing after appellant inside) was brief and is not alleged to have been unlawful.

There were no police threats, force, promises, or coercive behavior.

       {¶51} As stated, appellant left Williams in the Cadillac while he went into the

building. Officer Mino, dressed in a police uniform with a visible gun, ordered Williams

out of the vehicle. Williams was initially shocked. However, Officer Mino testified that

he calmed her down and explained to her what the police were doing inside the

apartment building. Williams was never under arrest. Williams was told at the scene

that she did not have to provide consent for the search. However, after calming down

and listening to Officer Mino’s explanation, Williams consented to a search of her and

appellant’s home. She also consented again later at the station in front of other officers.

Williams signed a consent to search form. She cooperated with police by providing

directions and a key to their home. Williams also voluntarily went to the police station

several days after the incident to give a statement.




                                            14
       {¶52} Upon consideration, there is no reasonable probability the result of the trial

would have differed if a motion to suppress had been filed or pursued. Weimer, supra,

at ¶38. We therefore cannot conclude that appellant was prejudiced by any alleged

deficient conduct on the part of his trial counsel.

       {¶53} Appellant’s second assignment of error is without merit.

       {¶54} For the foregoing reasons, appellant’s assignments of error are not well-

taken. The judgment of the Lake County Court of Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, J.,

THOMAS R. WRIGHT, J.,

concur.




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