[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