[Cite as State v. Drake, 2011-Ohio-3042.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. No.       25528

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
MICHAEL R. DRAKE                                    COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 10 02 0529(A)

                                 DECISION AND JOURNAL ENTRY

Dated: June 22, 2011



        WHITMORE, Presiding Judge.

        {¶1}     Defendant-Appellant, Michael Drake, appeals from his convictions in the Summit

County Court of Common Pleas. This Court affirms.

                                                I

        {¶2}     At approximately 2:00 a.m. on February 24, 2010, Akron Police Officers Todd

Myers and Warren Soulsby, Jr. responded to a dispatch for a noise complaint at an apartment on

Julien Circle in Akron. When they arrived at the apartment, Officers Myers and Soulsby looked

through the apartment’s front window and saw a female and a male, later identified as Drake,

standing inside. Both officers observed Drake holding a syringe against his arm as if to inject

himself. The officers then radioed for assistance and waited outside.

        {¶3}     Upon the arrival of additional officers, the police knocked and announced their

presence. The resident of the apartment, Roseanne Dugger, answered the door and admitted that

she had been engaging in drug-related activity. The police entered the apartment with Dugger’s
                                                 2


consent and found Drake and another male inside. They also found items of paraphernalia and

several narcotics, including bindles of heroin. Because he exhibited signs of heroin use, the

police arrested Drake after the search. The police were not immediately able to identify Drake,

as he initially provided officers with his brother’s name instead of his own.

       {¶4}    On March 9, 2010, a grand jury indicted Drake on the following counts: (1)

possession of heroin, in violation of R.C. 2925.11(A)(C)(6); (2) illegal use or possession of drug

paraphernalia, in violation of R.C. 2925.14(C)(1); (3) falsification, in violation of R.C.

2921.13(A)(3); and (4) obstruction of official business, in violation of R.C. 2921.31(A). The

matter proceeded to a jury trial on July 19, 2010. The jury determined that Drake did not possess

drug paraphernalia, but found him guilty of all the remaining charges. The court sentenced

Drake to eleven months in prison.

       {¶5}    Drake now appeals from his convictions and raises four assignments of error for

our review. For ease of analysis, we consolidate several of the assignments of error.

                                                 II

                                Assignment of Error Number One

       “DEFENDANT SUFFERED PREJUDICE THROUGH PLAIN ERROR AS THE
       PROSECUTION FAILED TO ESTABLISH VENUE IN ITS CASE-IN-CHIEF,
       AS REQUIRED BY THE OHIO CONSTITUTION, SECTION 10, ARTICLE I.”

                                Assignment of Error Number Two

       “DEFENDANT LACKED EFFECTIVE ASSISTANCE OF COUNSEL
       BECAUSE TRIAL COUNSEL FAILED TO MOVE FOR A JUDGMENT OF
       ACQUITTAL AT THE CLOSE OF THE STATE’S CASE-IN-CHIEF AS THE
       STATE FAILED TO ELICIT TESTIMONY OF THE ADDRESS, CITY, AND
       COUNTY WHERE THE CRIME OCCURRED.”
                                                3


       {¶6}    In his first and second assignments of error, Drake argues that the State failed to

establish venue beyond a reasonable doubt and that his trial counsel was ineffective for failing to

move for an acquittal on that basis. We disagree.

       {¶7}    “[T]he State must prove venue beyond a reasonable doubt unless the defendant

waives it.” State v. Smallwood, 9th Dist. No. 24282, 2009-Ohio-1987, at ¶5, citing State v.

Headley (1983), 6 Ohio St.3d 475, 477. The State may do so either expressly or indirectly by

reference to “all the facts and circumstances in the case.” Headley, 6 Ohio St.3d at 477.

       {¶8}    Here, Drake argues that the State failed to prove venue because the prosecutor did

not “elicit any testimony of the city or county where the crime occurred[.]” To the contrary, the

State’s very first witness, Officer Myers, testified that this incident occurred at Julien Circle,

which he later identified as being located in “Akron, Ohio, Summit County.” Dugger also

testified as to the apartment’s address and location in Akron, Ohio. Consequently, the State

established venue beyond a reasonable doubt, and Drake’s first assignment of error is wholly

devoid of merit. Moreover, because the State established venue, Drake’s counsel was not

ineffective for failing to move for an acquittal on that basis. See Strickland v. Washington

(1984), 466 U.S. 668, 687 (setting forth test for ineffective assistance). Drake’s first and second

assignments of error are overruled.

                               Assignment of Error Number Three

       “DEFENDANT’S CRIMINAL RULE 29 MOTION SHOULD HAVE BEEN
       GRANTED AS TO THE COUNT OF POSSESSION OF HEROIN.”

       {¶9}    In his third assignment of error, Drake argues that his conviction for possession of

heroin is based on insufficient evidence. We disagree.
                                                4


       {¶10} In order to determine whether the evidence before the trial court was sufficient to

sustain a conviction, this Court must review the evidence in a light most favorable to the

prosecution. State v. Jenks (1991), 61 Ohio St.3d 259, 274. Furthermore:

       “An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction 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. 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.” Id. at paragraph two of the syllabus; see,
       also, State v. Thompkins (1997), 78 Ohio St.3d 380, 386.

“In essence, sufficiency is a test of adequacy.” Thompkins, 78 Ohio St.3d at 386.

       {¶11} “No person shall knowingly obtain, possess, or use a controlled substance.” R.C.

2925.11(A).   “If the drug involved in the violation is heroin ***, whoever violates [R.C.

2925.11(A)] *** is guilty of possession of heroin.” R.C. 2925.11(A)(C)(6). “A person acts

knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a

certain result or will probably be of a certain nature. A person has knowledge of circumstances

when he is aware that such circumstances probably exist.” R.C. 2901.22(B).

       {¶12} Drake argues that his conviction for possession of heroin is based on insufficient

evidence because the police did not find any drugs on his person. Yet, both Officers Myers and

Soulsby testified that they observed Drake holding a syringe to his arm and that he was acting in

a manner consistent with heroin use. Specifically, Officer Myers testified that Drake had slurred

speech, his eyes were droopy, and he looked like he was falling asleep; all of which he identified

as symptoms of heroin use. Officer Soulsby corroborated that testimony and another officer,

Officer Brian Cresswell, testified that Drake’s pupils seemed dilated.         Officer Cresswell

confirmed that dilated pupils are another indication of heroin use. Moreover, Officer Myers

testified that he observed needle marks on Drake’s right arm; the same arm against which he saw
                                                 5


Drake holding a syringe shortly before the police entered Dugger’s apartment. The police

confiscated heroin bindles from Dugger’s apartment when they searched it.

       {¶13} The evidence in the record supports the conclusion that Drake used heroin. See

R.C. 2925.11(A) (including use as a form of possession). Consequently, Drake’s conviction for

possession of heroin is based on sufficient evidence. Drake’s third assignment of error is

overruled.

                                Assignment of Error Number Four

       “PLAIN ERROR OCCURRED AS APPELLANT INCURRED TWO
       CONVICTIONS BASED ON A SINGLE ACT, IN VIOLATION OF OHIO
       REVISED CODE § 2941.25(A).”

       {¶14} In his fourth assignment of error, Drake argues that the trial court committed plain

error by convicting him of allied offenses. Specifically, he argues that he should not have been

convicted of both falsification and obstruction of official business because both charges stemmed

from his failure to provide the police with his real name.

       {¶15} R.C. 2941.25(A) prohibits the imposition of multiple convictions for the same

conduct. For purposes of R.C. 2941.25, a conviction consists of both a guilty verdict and a

sentence or penalty. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, at ¶12. Upon our

review of the record, the sentencing entry in this case orders that Drake’s obstruction of official

business charge merge with his falsification charge, as the two counts constitute allied offenses

of similar import. The trial court only imposed a sentence on the falsification count. Thus, the

court appropriately left the jury’s guilty verdicts intact and only sentenced Drake on one count in

accordance with Whitfield. Whitfield at ¶27. Drake’s fourth assignment of error is overruled.
                                                 6


                                                III

       {¶16} Drake’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                      BETH WHITMORE
                                                      FOR THE COURT


MOORE, J.
DICKINSON, J.
CONCUR
                                         7


APPEARANCES:

DONALD GALLICK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
