[Cite as State v. Banks, 2013-Ohio-255.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 97299

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs.

 WILLIE BANKS 

DEFENDANT-APPELLANT 

JUDGMENT: 

APPLICATION DENIED

Cuyahoga County Common Pleas Court 

Case No. CR-545495 

Application for Reopening 

Motion No. 457724 

RELEASED: January 25, 2013 
FOR APPELLANT 

Willie Banks, pro se 

Inmate No. 604-615 

Lorain Correctional Institution 

2075 S. Avon Belden Road 

Grafton, Ohio 44044

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Denise J. Salerno 

 James M. Price 

Assistant Prosecuting Attorneys 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
LARRY A. JONES, J.: 

{¶1} Willie Banks has filed a timely application for reopening pursuant to App.R. 

26(B). Banks is attempting to reopen the appellate judgment that was rendered in State v. 

Banks, 8th Dist. No. 97299, 2012-Ohio-2304, which affirmed his conviction for the 

offenses of trafficking in drugs with a juvenile specification (R.C. 2925.03(A)(2) and R.C. 

2925.01(BB)), possession of drugs (R.C. 2925.11(A)(1)), endangering children (R.C. 

2919.22(A)(1)), possessing criminal tools (R.C. 2923.24(A)(1)), and tampering with 

records (R.C. 2913.42(A)(1)). We decline to reopen the appellate judgment that was 

journalized on May 24, 2012. 

{¶2} In order to establish a claim of ineffective assistance of appellate counsel, 

Banks must demonstrate that appellate counsel’s performance was deficient and that, but 

for the deficient performance, the result of his appeal would have been different. State v. 

Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456. Specifically, Banks must 

establish that “there is a genuine issue as to whether he was deprived of the effective 

assistance of counsel on appeal.” App.R. 26(B)(5). 

{¶3} In State v. Smith, 95 Ohio St.3d 127, 2002-Ohio-1753, 766 N.E.2d 588, the 

Supreme Court of Ohio held that: 

Moreover, to justify reopening his appeal, [applicant] “bears the burden of 

establishing that there was a ‘genuine issue’ as to whether he has a 

‘colorable claim’ of ineffective assistance of counsel on appeal.” State v. 

Spivey, 84 Ohio St.3d 25, 1998-Ohio-704,701 N.E.2d 696. 

Strickland charges us to “appl[y] a heavy measure of deference to counsel’s 

judgments,” 466 U.S. at 691, 104 S.Ct. 2052, 80 L.Ed.2d 674, and to 

“indulge a strong presumption that counsel’s conduct falls within the wide 

range of reasonable professional assistance,” Id. at 689, 104 S.Ct. 2052, 80 
L.Ed. 674. Moreover, we must bear in mind that appellate counsel need not 

raise every possible issue in order to render constitutionally effective 

assistance. See Jones v. Barnes, 463 U.S. 745, 103 S.Ct 3308, 77 L.Ed.2d 

987 (1983); State v. Sander, 94 Ohio St.3d 150, 761 N.E.2d 18 (2002). 

State v. Smith, supra, at 7. 

{¶4} In addition, the Supreme Court of Ohio, in State v. Spivey, 84 Ohio St.3d 24, 

1998-Ohio-704, 701 N.E.2d 696, held that: 

In State v. Reed (1996), 74 Ohio St.3d 534, 535, 660 N.E.2d 456, 458, we 

held that the two prong analysis found in Strickland v. Washington (1984), 

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed 674, is the appropriate standard to 

assess a defense request for reopening under App.R. 26(B)(5). [Applicant] 

must prove that his counsel were deficient for failing to raise the issues he 

now presents, as well as showing that had he presented those claims on 

appeal, there was a “reasonable probability” that he would have been 

successful. Thus [applicant] bears the burden of establishing that there was 

a “genuine issue” as to whether he has a “colorable claim” of ineffective 

assistance of counsel on appeal. 

Id. 

{¶5} Herein, Banks has raised two proposed assignments of error in support of his 

claim of ineffective assistance of appellate counsel. Banks argues that consideration of 

his two proposed assignments of error would have resulted in a reversal of his conviction 

for the offenses of trafficking in drugs with a juvenile specification, possession of drugs, 

endangering children, possessing criminal tools, and tampering with records. A review of 

Banks’s two proposed assignments of error, however, fails to support the claim of 

ineffective assistance of appellate counsel. 

{¶6} Banks’s first assignment of error is that: 

The evidence was insufficient and against the manifest weight, as a matter of 

law, to convict Willie Banks of Drug Trafficking. 
{¶7} Banks, through his first proposed assignment of error, argues the issues of 

manifest weight and sufficiency of the evidence with regard to his conviction for the 

offense of trafficking in drugs. We find that Banks’s conviction for the offense of 

trafficking in drugs was supported by sufficient evidence and that his conviction was not 

against the manifest weight of the evidence. 

{¶8} Sufficiency of the evidence and weight of the evidence are legally distinct 

issues. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. This 

court, when reviewing the issue of sufficiency of the evidence, must examine the evidence 

adduced at trial to determine whether such evidence, if believed, would convince the 

average mind of the defendant’s guilt beyond a reasonable doubt. Thus, this court must 

determine 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.; State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 

(1955). 

{¶9} Whereas sufficiency requires a determination of whether the prosecution has 

meet its burden of proof beyond a reasonable doubt as to each and every element of the 

crime charged, manifest weight questions whether the state has met its burden of 

persuasion. Thompkins; State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist. 

1983). When reviewing a manifest weight challenge, the court must review the record, 

weigh the evidence and all reasonable inferences, examine the credibility of the witnesses, 

and determine whether, in resolving conflicts, if the jury or trier of fact clearly lost its way 

and created such a manifest miscarriage of justice that the conviction must be reversed and 
a new trial ordered. Tibbs v. Florida, 457 U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652 

(1982), citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 

In other words, the question raised through a manifest weight issue is whether there is 

substantial evidence upon which a jury could conclude that all elements of the charged 

crime have been proven beyond a reasonable doubt. State v. Getsy, 84 Ohio St.3d 180, 

702 N.E.2d 866 (1998), citing State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132 (1978). 

In addition, finding that a conviction is supported by the weight of the evidence must 

necessarily include a finding of sufficiency. State v. Dowell, 8th Dist. No. 83575, 

2004-Ohio-3870. 

{¶10} Herein, the evidence adduced at trial clearly demonstrated, beyond a 

reasonable doubt, that Banks did knowingly prepare for shipment, ship, transport, deliver, 

prepare for distribution, a controlled substance, crack cocaine, when he knew or had 

reasonable cause to believe that the crack cocaine was intended for sale or resale, a 

violation of R.C. 2925.03(A)(2). The evidence adduced at trial demonstrated that: (1) 

Banks was sitting in a motor vehicle parked in the lot of a vacant gas station located at the 

corner of Woodhill Road and Woodland Avenue; (2) a Confidential Reliable Informant 

(“CRI”) recognized the parked motor vehicle as the van used by Banks when selling drugs 

in the Woodhill Estates neighborhood; (3) the CRI contacted Detective Ovalle of the 

Cleveland Metropolitan Housing Authority (“CMHA”) and provided information that 

Banks was parked across the street from CMHA property; (4) Det. Ovalle and another 

CMHA detective located the van and observed Banks enter and exit the van on several 

occasions; (5) Det. Ovalle approached the van and asked Banks to identify himself; (6) 
Banks identified himself as “Tyrone Banks” and provided a birth date and social security 

number; (7) the other detective went to the passenger side of the van and observed Martina 

Jackson holding a baby, two other young children, suspected crack cocaine, and a scale all 

in plain view; (8) Banks and Jackson were informed of their Miranda rights; (9) Banks 

admitted that the crack cocaine was his property and provided a written statement; (10) in 

the written statement, Banks admitted that he purchased the crack cocaine for $2,000 and 

that of the $345 in his possession, $100 was drug money; (11) Jackson confirmed that the 

crack cocaine belonged to Banks and also made a written statement; (12) 51.25 grams of 

crack cocaine and a digital scale were recovered from Banks’s van; (13) at trial, Jackson 

testified that she was with her three children and Banks in the van the day of the arrest; 

(14) Jackson testified that Banks had made one sale of crack cocaine prior to their arrest; 

and (15) Jackson testified that the crack cocaine belonged to Banks. 

{¶11} Based upon the evidence and testimony adduced at trial, we find that 

sufficient evidence was produced by the prosecution to support each and every element of 

the charged offense of trafficking in drugs. In addition, we find that the conviction for 

trafficking in drugs was not against the manifest weight of the evidence. Banks’s first 

assignment of error is without merit and thus does not support his claim of ineffective 

assistance of appellate counsel on appeal. 

{¶12} Banks’s second proposed assignment of error is that: 

Appellant’s counsel was ineffective for failing to show that Mr. Banks’s 

initial contact with police was non-consensual. 

{¶13} Banks, through his second proposed assignment of error in support of his 
claim of ineffective assistance of counsel, argues that the initial encounter with the CMHA 

police was not a consensual encounter and thus a violation of the Fourth Amendment. 

The issue of whether the initial contact with Banks was consensual was previously 

addressed on appeal, and found to be without merit. In State v. Banks, supra, this court 

held that: 

The Fourth Amendment to the United States Constitution prohibits 

warrantless searches, rendering them per se unreasonable unless an 

exception applies. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 

L.Ed.2d 576 (1967). An investigative stop, or Terry stop [Terry v. Ohio, 392 

U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)], is a common exception to the 

Fourth Amendment warrant requirement. It is well recognized that officers 

may briefly stop and detain an individual, without an arrest warrant and 

probable cause, in order to investigate a reasonable and articulable suspicion 

of criminal activity. State v. Carroll, 8th Dist. No. 96212, 2011-Ohio-5255, 

¶ 16, citing Terry. * * * 

The record shows that Banks was parked in the parking lot of a vacant gas 

station having work done on his vehicle. The police received a tip from a 

CRI and went to the area. The police surveilled the area for several minutes 

and observed Banks getting in and out of the van several times and also saw 

another man working on the van. Detective Ovalle approached Banks on 

foot and asked him a few questions, which Banks answered. Once the other 

detective saw the suspected drugs and scale in plain view, he and his partner 

read Banks and Jackson their rights and continued to question him. 

Although a formal arrest is not necessary to trigger the protections of the 

Fourth Amendment, here, Banks is unable to show that his initial contact 

with police was non-consensual. (Emphasis added). 

Banks, supra, ¶13. 

{¶14} Clearly, this court has previously determined that Bank’s initial contact with 

the police was consensual and that his Fourth Amendment rights were not violated through 

the initial stop and questioning. Thus, the doctrine of res judicata bars any further 

litigation of the question of whether Banks’s initial contact with police was 
non-consensual. State v. Segines, 8th Dist. No. 89915, 2010-Ohio-5112, reopening 

disallowed, 2011-Ohio-1579, Motion No. 441247; State v. Pratt, 8th Dist. No. 93123, 

2010-Ohio-1426, reopening disallowed, 2010-Ohio-4998, Motion No. 434932. Banks’s 

second proposed assignment of error is without merit and thus does not support his claim 

of ineffective assistance of appellate counsel on appeal. 

{¶15} Accordingly Banks’s application for reopening is denied. 

 

LARRY A. JONES, SR., PRESIDING JUDGE 

MARY EILEEN KILBANE, J., and 

EILEEN T. GALLAGHER, J., CONCUR