COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59480 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION ABDUL R. HASAN, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 27, 1991 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-240,499 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: David L. Doughten 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- *HAYES, J.: Abdul Hasan, defendant-appellant, appeals his conviction on three counts of violating the drug law under R.C. 2925.03(B) arising from three separate sales of cocaine to a confidential informant. Michael Daniels, the confidential informant, testified that he worked for the U.S. Postal Service and that he assisted in the investigation of postal employees for possible drug activity. In early August, 1988, Daniels went to Cuz's bar in Cleveland based on information that postal employees were engaged in drug activity there. Daniels met Hasan at Cuz's bar and, after repeated contacts with each other, Hasan offered to sell cocaine to Daniels. Daniels and Hasan arranged to meet on Hasan's mail route at Lenny's Marathon gas station in Murray Hill on August 30, 1988. On such day, Daniels arrived at the gas station around 1:00 p.m. in a rented car. Hasan, wearing his postal uniform, entered the vehicle. Daniels paid him $260 and they agreed to meet at 3:15 p.m. that afternoon at Cuz's bar. Near to the designated time, Hasan gave Daniels 2.10 grams of cocaine and $10 in change in the parking lot of Cuz's bar. On September 12, 1988, Daniels met Hasan at Cuz's bar at which time Daniels asked Hasan for "one-sixteenth" of cocaine. They met at Lenny's Marathon station the next day between 12:30 p.m. and 1:00 p.m. at which time Daniels gave Hasan $130. They agreed to meet later that day at Cuz's bar. Later, at Cuz's bar, Hasan arrived without drugs and explained that he had not -3- seen "his guy". The two agreed to meet again at Lenny's Marathon the next day. On September 16, 1988, at the gas station, Hasan again was without drugs but stated that they meet again at Cuz's bar later in the afternoon. At such time, Hasan delivered 1.49 grams of cocaine to Daniels' car in the parking lot there. On September 26, 1988, Daniels met Hasan and requested fourteen grams of cocaine. Eventually, on September 28, 1988, Hasan sold 12.23 grams of cocaine to Daniels at Cuz's bar for $850. At the time of each of the controlled purchases, Daniels wore a radio transmitter when he met Hasan. In addition, two videotapes were made of the transaction on September 16, 1988. Audio tapes as well as the two video tapes were identified and admitted into evidence. Norbert Truskowski, a U.S. Postal Service inspector, testified that he was involved in the investigation of drug activity among postal employees. He worked in conjunction with Daniels and corroborated Daniels' testimony. Truskowski further testified about the procedure employed on the three controlled purchases and the way in which Daniels was searched prior to and after the purchases and how Daniels was wired and monitored during such time. After each transaction was completed, Truskowski would tag the package in question and have it tested for cocaine. Each package tested positive and was sent to Washington, D.C. for further testing with forensic chemists with -4- the U.S. Postal Service. Such later tests also indicated that the substances were cocaine. Hasan chose not to testify. However, Clarence Cummings, Hasan's brother, testified that he was with Hasan on September 28, 1988 and that Hasan did not hand a package to Daniels while in the parking lot at Cuz's bar. On June 14, 1989, Hasan was indicted on three counts in violation of the drug law pursuant to R.C. 2925.03(B). On February 9, 1990, trial commenced and a jury found him guilty of all three counts. This timely appeal follows. I. Appellant's first assignment of error states: THE TRIAL COURT COMMITTED PLAIN ERROR BY ALLOWING THE STATE TO INTRODUCE EVIDENCE OF "OTHER ACTS" OF APPELLANT. On direct examination, Daniels testified that Hasan was involved in an illegal gambling operation known as the "numbers" game. In addition, Hasan admitted his involvement in the "numbers" game in a conversation with Daniels that was recorded on tape and admitted into evidence. Hasan contends that the trial court erred by allowing the state to introduce evidence of "other acts" and that Hasan was materially prejudiced as a result. We note initially that counsel for Hasan failed to object to Daniels' testimony about Hasan's involvement in the "numbers" game as well as to the admission of the tapes into evidence. As -5- a result, we need not address this issue inasmuch as it was not preserved by objections. State v. Gordon (1971), 28 Ohio St. 2d 45, 276 N.E.2d 243, paragraph two of the syllabus. However, the alleged error may be considered on appeal if it constitutes plain error. The plain error test requires that, but for the existence of the error, the result of the trial would have been otherwise. State v. Long (1928), 53 Ohio St. 2d 91, 97, 372 N.E.2d 804. Ordinarily, evidence of the defendant's prior conduct that tends to show bad character is inadmissible to prove conduct in issue at trial. Evid. R. 404(B) provides that: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. A similar provision is found in R.C. 2945.59, which provides: In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan or system in doing an act 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. Evid. R. 404(B) and R.C. 2945.59 codify an exception to the common law. State v. Broom (1988), 40 Ohio St. 3d 277, 281-2, 533 N.E.2d 682, certiorari denied (1989), 109 S. Ct. 2089. We do -6- not believe that Hasan's involvement in numbers fell within an exception under Evid. R. 404(B) or R.C. 2945.59. Such acts were not inextricably related to the alleged act of selling drugs. State v. Curry (1975), 43 Ohio St. 2d 66, 330 N.E.2d 720. However, any error in the admission of "other act" testimony is harmless when there is no reasonable possibility that the testimony or evidence contributed to the defendant's conviction. State v. Lytle (1976), 48 Ohio St. 2d 391, 358 N.E.2d 623, paragraph three of the syllabus. We hold that any error related to the admission of testimony of Hasan's involvement in the "numbers" game was harmless in view of the overwhelming evidence against him. There is no reasonable possibility that such testimony contributed to his conviction. Appellant's first assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED IN ALLOWING THE TAPES TO BE PLAYED TO THE JURY AND IN ALLOWING THE JURY TO TAKE THE TAPES INTO THE DELIBERATION ROOM. Hasan maintains that the trial court erred by the admission of audio and video tapes of the controlled transactions. He asserts that certain portions of the audio tapes were inaudible and that commentary on the tapes by postal officials which identified people in the videos was improper. As a result, he contends that such tapes should not have been admitted and that he was prejudiced materially as a result of their admission. -7- Evid. R. 1002, which concerns the requirement of original evidence, states: To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio. A tape of a recorded conversation is the best evidence pursuant to Evid. R. 1002, provided that the recording is admissible, available, and audible. Harleysville Mut. Ins. Co. v. Santora (1982), 3 Ohio App. 3d 257, 444 N.E.2d 1076, paragraph one of the syllabus; see State v. Holmes (1987), 36 Ohio App. 3d 44, 521 N.E.2d 479. Our review of the audio and video tapes does not indicate that the trial court abused its discretion by admitting them. Evid. R. 401; Evid. R. 403. Upon close inspection, the audio tapes are substantially audible. In addition, we do not believe that the commentary on the tapes by the postal employees invaded the province of the jury to determine what transpired. The mere identification of individuals within the tapes cannot be deemed prejudicial in view of the overwhelming evidence against Hasan and the obvious course of events that unfolded within the tape. Therefore, any error related thereto is deemed harmless. We also note that counsel for Hasan did not object to the admission of these tapes. As a result, any such error was waived. State v. Williams (1977), 51 Ohio St. 2d 122, 364 N.E.2d -8- 1364, vacated on other grounds (1978), 438 U.S. 911; State v. Gordon (1971), 28 Ohio St. 2d 45, 276 N.E.2d 243. Appellant's assignment of error is overruled. III. Appellant's third assignment of error states: APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL. Hasan maintains that his counsel at trial rendered ineffective assistance by failing to object to the admission of "other acts" evidence to which Daniels testified and to the admission of the audio and video tapes. We disagree. The appellant bears the burden of proof with respect to the ineffectiveness of counsel. State v. Lytle (1976), 48 Ohio St. 2d 391, 396-7, 358 N.E.2d 623. In State v. Brooks (1986), 25 Ohio St. 3d 144, 147, 495 N.E.2d 407, the Ohio Supreme Court adopted the two-part test enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668 to determine whether there was ineffective counsel: First the 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. Brooks at 147 citing Strickland at 687. In the case at bar, Hasan has failed to show that counsel's assistance was deficient or prejudicial. Rather, Hasan's trial -9- counsel may well have decided that the best tactic was to present the defense of entrapment or that Hasan was unfairly targeted by the postal inspectors. If such were the case, the admission of the tapes would assist the defense. Our review of the evidence does not indicate that Hasan was denied a fair trial. He did not believe the assistance he received at trial was ineffective. As mentioned above, we do not believe that the result of the trial would have been any different even if the trial court had excluded the evidence of Hasan's involvement in the illegal "numbers" game. See State v. Bradley (1989), 42 Ohio St. 3d 136, 538 N.E.2d 373. Appellant's assignment of error is overruled. Accordingly, the judgment of the trial court is affirmed. -10- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN McMANAMON, P.J., and JAMES D. SWEENEY, J., CONCUR. *JERRY L. HAYES JUDGE (*SITTING BY ASSIGNMENT: Judge Jerry L. Hayes, Domestic Relations Court of Portage County.) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .