COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60006 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : GEORGE CADWALLADER : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 12, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-246473. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Mary Haas Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Michael R. Gareau, Esq. William L. Costello, Esq. Gareau & Dubelko Co., L.P.A. 23823 Lorain Rd., Suite 200 North Olmsted, Ohio 44070 -2- SWEENEY, JAMES D., J.: Defendant-appellant George W. Cadwallader ("Cadwallader") appeals from his jury trial conviction of trafficking in drugs [R.C. 2925.03] as charged in count one and permitting drug abuse [R.C. 2925.13] as charged in count two. For the reasons adduced below, we affirm. A review of the record reveals that Cadwallader and a co- defendant, Michael Gordon ("Gordon"), were originally indicted on three counts on July 26, 1989, and were assigned trial court case number 242064. Cadwallader was arrested on August 3, 1989, and released on bond on August 4, 1989. (R. 6-7.) Trial was set for November 14, 1989. Journal, Vol. 897, page 580. This trial date was continued to December 20, 1989, due to the court being engaged in trial. Journal Vol. 897, page 580, November 20, 1989. On November 22, 1989, Cadwallader and Gordon were indicted for the same offenses and were assigned trial court case number 246473. The difference between the first indictment is that the second indictment included a prior felony drug offense against Gordon on counts one and two. Cadwallader was arraigned on December 18, 1989, on the second indictment and pled not guilty. The trial did not go forward on December 20, 1989, and the matter was rescheduled to January 11, 1990. The record further reflects the following entries made by the court relative to the second indictment: -3- a. January 2, 1990: Trial set for 1-11-90. b. January 18, 1990: Trial set. Court and counsel engaged in trial. Trial reset 2-8-90. c. February 13, 1990: Trial continued to 3-12-90. d. March 13, 1990: Bill of Particulars filed. Demand for Discovery by the State of Ohio filed. e. March 26, 1990: Trial continued at State's request to 4-11-90. f. April 18, 1990: Trial rescheduled to 4-25-90, due to Court's unavailability. g. May 29, 1990: Trial reset to 5-17-90. Trial set, trial continued at deft's request to 6-5-90. The trial in this matter began on June 5, 1990. The prosecution presented the testimony of five witnesses and the defense presented the testimony of one witness. Detective Bruce Wilkins ("Wilkins") of the City of Lakewood police department, testified that in early March of 1989, an informant by the name of John Deutsch ("Deutsch") contacted him wishing to set up a controlled purchase of cocaine in exchange for a recommendation of leniency in sentencing to the prosecutor on two pending unrelated cases concerning Deutsch. On March 13, 1989, Wilkins stated that he and Deutsch telephoned Gordon at his place of business and attempted to arrange a controlled purchase of one-half ounce of cocaine from -4- Gordon. This telephone call was not electronically recorded and the purchase on this date did not occur. On March 14, 1989, Deutsch returned to the Lakewood police station and, at 5:00 p.m., initiated a three-person telephone call between himself, Gordon and Cadwallader. Wilkins was listening to this call on a separate line and electronically recorded the conversation. See State's Ex. 1. Deutsch sought to purchase one-half ounce of cocaine in exchange for $625.00. Gordon agreed to meet Deutsch in front of Deutsch's mother's residence at 11825 Detroit Avenue, Lakewood. Wilkins then searched Deutsch's person, fitted a radio transmitter to the chest of Deutsch, activated same, gave Deutsch $625.00 in marked bills, and left the police station. Lakewood Detective Fred Wellman ("Wellman"), who witnessed the telephone call, search, and placement of the radio, transported Deutsch to the pre-arranged meeting place. Deutsch exited the undercover auto used by Wellman and stood by the street waiting for Gordon. Wilkins, in a separate undercover auto, and Wellman then parked nearby to observe the scene. No one approached or talked to Deutsch as he waited. After several minutes, a black, 1987 Audi, driven by Gordon, arrived. Deutsch seated himself in the front passenger seat and the Audi then departed. The officers followed. In a short period of time, the Audi pulled into the driveway of a duplex home at 9622 Silk Avenue, Cleveland. Wellman, located several doors down from the house and operating the tape recorder counterpart of the transmitter, -5- witnessed Gordon and Deutsch exit the Audi and go into the house. Wilkins waited in his car several blocks away and was in radio contact with Wellman, monitoring the broadcast. Deutsch testified that the only persons present in the house were himself, Gordon and Cadwallader. The defendants did not have a sufficient amount of cocaine on the premises to satisfy the demand for one-half an ounce of the drug, but they did discuss getting 3/8 of an ounce of the drug. Deutsch testified that Cadwallader said he could get the drugs and then he, Cadwallader, made a telephone call from the house. Deutsch gave the money to Cadwallader. Cadwallader, about ten minutes after the other two arrived, then left the house alone driving Gordon's Audi. Cadwallader returned to the house about forty-five minutes later and gave Deutsch a small baggie containing some white 1 powder. Deutsch and Gordon then left the house. Gordon, driving the Audi, dropped Deutsch off where he had originally met him on Detroit Avenue. Wellman picked up Deutsch in the unmarked auto and drove to a nearby grocery store parking lot, where they met Wilkins. Deutsch gave the baggie of white powder to Wilkins, and the officers and Deutsch drove back to the police station. At the police station, Deutsch's person was searched by Wilkins and the radio transmitter was removed from the informant's body. No money or other drugs were found on Deutsch's person. 1 Wellman testified that no one entered or left the house during the time of Cadwallader's absence. -6- An analysis, by the Ohio Bureau of Criminal Investigation, of the white powder delivered to Deutsch by Cadwallader tested positive for cocaine, a Schedule II drug, in the amount of 10.21 grams. An amount of cocaine in excess of ten grams satisfies the definition of bulk amount. R.C. 2925.01(E)(1). The defense moved for acquittal pursuant to Crim. R. 29 at the close of the prosecution's case. The court granted this motion as to count three for possession of criminal tools (1987 Audi), leaving counts one and two pending. The defense then presented the testimony of its only witness, Mr. Paul B. Gordon, the father of defendant Gordon and Deutsch's uncle. Mr. Gordon is the owner of Gordon & Associates, where he and his son worked. The court, over the objection of the prosecution, allowed Mr. Gordon to testify as to the accuracy 2 of the secretary's telephone log from the office. Mr. Gordon testified that all incoming telephone calls are supposed to be logged in the book by the secretary. The log book reflected that: (1) there were no entries after 4:37 p.m. on the afternoon of March 14, 1989; (2) there were entries from a "John" on March 14, 1989, at 10:00 a.m., 1:02 p.m., and 1:35 p.m.; (3) there were no entries from "John" on March 13, 1989. Mr. Gordon last saw his son between 3:00 and 4:00 p.m. on March 14, 1989, and did not know what the son did after that time. 2 The secretary is the sister of Deutsch. -7- Mr. Gordon also stated that Deutsch owed him a total of $5,259.82 at the time of trial. This money was loaned over a period of time to help Deutsch obtain bond and make restitution in a number of past legal proceedings. Mr. Gordon claimed that he declined Deutsch's request for more money in February, 1989. At the close of all evidence, the defense renewed its motion for acquittal. This motion was overruled. Following closing arguments, the court charged the jury. On Friday, June 8, 1990, at 11:00 a.m., the court received a question by the jury requesting the court repeat the definition of "reasonable doubt." The court answered the question of the jury by again defining the term "reasonable doubt." Counsel was not present at this time and was not advised of the communication. During the afternoon of June 8, 1990, the court received another question by the jury requesting a redefinition of the term "aggravated trafficking." Counsel was apprised of this communication and the court, in the presence of the jury and counsel, redefined the term "aggravated trafficking." The jury returned to its deliberations. Later that afternoon, the jury returned guilty verdicts on both remaining counts on both defendants. Following sentencing, this appeal raising four assignments 3 of error followed. 3 Co-defendant Michael Gordon's notice of appeal is the subject of appellate case number 60075. -8- I THE TRIAL COURT ERRED WHEN THE JUDGE COMMUNICATED WITH THE JURY DURING DELIBERATIONS IN THE ABSENCE OF COUNSEL, AND SUCH COMMUNICATION RELATED TO THE SUBSTANCE OF THE JURY CHARGE. The communication of which appellant refers is the following: FRIDAY MORNING SESSION, JUNE 8, 1990 (11:00 A.M.) (Thereupon, the following proceedings were had in the presence of Judge Lillian J. Greene and the jury in the jury deliberation room:) THE COURT: Who's Juror No. 3? JUROR CURTIS: I am. THE COURT: Okay. Is this your question: "Judge Pokorny, could we please have the definition of "Reasonable Doubt" again?" JUROR CURTIS: Right. THE COURT: All right. The legislature's definition of reasonable doubt is as follows: Reasonable doubt is present when the jurors, after they have carefully considered and compared all evidence, cannot say they are firmly convinced of the truth of the charge. It is doubt based on reason and common sense. Reasonable doubt is not mere possible doubt because everything relating to human affairs or dependent upon moral evidence is open to some possible or imaginary doubt. Proof beyond a reasonable doubt is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his or her own affairs. Reasonable doubt. Okay. THE JURY: Thank you. (R. 278-279.) -9- The original charge given by the court to the jury on the term "reasonable doubt" was: "Every person that is accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt. And the burden of such proof is upon the prosecution. Reasonable doubt is present when the jurors, after they have carefully considered and compared all the evidence, cannot say that they are firmly convinced of the truth of the charge. It is a doubt based on reason and common sense. Reasonable doubt is not mere possible doubt, because everything relating to human affairs and depending on moral evidence is subject to some possible or imaginary doubt. Proof beyond a reasonable doubt is proof of such character that an ordinary person would be willing to rely and act upon it in the most, in conducting their most important affairs." (R. 261.) Appellant argues that the definition of "reasonable doubt" given in response to a question by the deliberating jury is prejudicial because the court did not include language as to which party bears the burden of proof and presumption of innocence of the accused. The question posed by the jury in its communication did not address the terms "burden of proof" or "presumption of innocence." In the present case, the court repeated verbatim the original instruction in responding to the jury's communication. Although the court erred in communicating with the jury out of the presence of appellant or his counsel, the question remains whether any prejudice to the right to a fair trial occurred. See Bostic v. Connor (1988), 37 Ohio St. 3d 144, -10- paragraph four of the syllabus; State v. Abrams (1974), 39 Ohio St. 2d 53, 68 Ohio Op. 2d 30. Here, it would be inconceivable to conclude that the jury's determination of guilt was influenced by the court's reply where the court, in its reply, repeated the instruction previously given the jury. Accordingly, there was no prejudice to appellant. Assignment overruled. II THE VERDICT OF THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. This court stated the following in City of Cleveland v. Clough (January 9, 1992), Cuyahoga App. No. 59507, unreported, at 8-9: The issue of manifest weight of the evidence was discussed in City of Cleveland v. Laux (June 27, 1991), Cuyahoga App. No. 58856, unreported, at pages 15-16: This court stated the following in State v. Mattison (1985), 23 Ohio App. 3d 10, at page 14: A reviewing court cannot reverse a judgment of conviction in a criminal case where there is sufficient evidence presented to the jury "'which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt.'" State v. Eley (1978), 56 Ohio St. 2d 169, 172 [10 O.O. 3d 340]; see, also, State v. DeHass (1967), 10 Ohio St. 2d 230 [39 O.O. 2d 366]. *** The eight factors listed in Gaston are merely guidelines to be taken into account when weighing the evidence. They are not hard and fast rules which must be followed. The eight factors mentioned in the above citation and relied upon by appellant, which are contained in State v. Gaston (Jan. 11, 1979), -11- Cuyahoga App. No. 37846, unreported, were referenced by the Mattison court in the syllabus. These factors are: 1. The reviewing court is not required to accept as true the incredible; 2. whether the evidence is uncontradicted; 3. whether a witness was impeached; 4. what was not proved; 5. the certainty of the evidence; 6. the reliability of the evidence; 7. whether a witness' testimony is self- serving; 8. whether the evidence is vague, uncertain, conflicting or fragmentary. Upon reviewing the evidence and testimony presented at trial, we conclude that the finding of guilt was supported by the weight of the evidence. Assignment overruled. III THE VERDICT OF THE TRIAL COURT WAS NOT SUPPORTED BY CREDIBLE COMPETENT EVIDENCE. Appellant was indicted and convicted on one count of each of the following offenses: 2925.03 Trafficking in drugs. (A) No person shall knowingly do any of the following: * * * (5) Sell or offer to sell a controlled substance in an amount equal to or exceeding the bulk amount but in an amount less than three times that amount; -12- * * * (C) If the drug involved is any compound, mixture, preparation, or substance included in schedule I with the exception of marihuana or in schedule II, whoever violates this section is guilty of aggravated trafficking. * * * (5) Where the offender has violated division (A)(5) or (A)(6) of this section, aggravated trafficking is a felony of the second degree and the court shall impose a sentence of actual incarceration of three years and if the offender has previously been convicted of a felony drug abuse offense, aggravated trafficking is a felony of the first degree, and the court shall impose a sentence of actual incarceration of five years. and, 2925.13 [Permitting drug abuse.] (A) No person, being the owner, operator, or person in charge of a locomotive, watercraft, aircraft, or other vehicles as defined in division (A) of section 4501.01 of the Revised Code, shall knowingly permit such vehicle to be used for commission of a felony drug abuse offense. * * * (C) Whoever violates this section is guilty of permitting drug abuse, a misdemeanor of the first degree, and if the offender has previously been convicted of a drug abuse offense, permitting drug abuse is a felony of the fourth degree. The test for sufficiency of the evidence is stated in State v. Martin (1983), 20 Ohio App. 3 172, at paragraph two of the syllabus, as: -13- *** whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential 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. See also, State v. Bridgeman (1978), 55 Ohio St. 2d 261; State v. Davis (1988), 49 Ohio App. 3d 109; and Crim. R. 29(A). Viewing the evidence in a light most favorable to the prosecution, we find that the trier of fact could have found all the essential elements of the offenses beyond a reasonable doubt. State v. Martin, supra. Assignment overruled. IV THE TRIAL COURT VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS TO A SPEEDY TRIAL BY COMMENCING WITH TRIAL MORE THAN TWO HUNDRED SEVENTY (270) DAYS AFTER THE DEFENDANT'S ARREST. Revised Code 2945.71(C)(2) provides that a person against whom a felony charge is pending "shall be brought to trial within two hundred seventy days after his arrest." Under the case at hand, Cadwallader was required to be brought to trial within 270 days of his arrest on August 3, 1989, unless tolled for reasons permitted by R.C. 2945.72. The various time periods present in this assignment will now be addressed. A -14- The first period to be counted toward the 270 day period is the day following the date of arrest, August 4, 1989. The 270 day period begins to run on August 4, 1989. Cadwallader spent a portion of this day in jail in lieu of bail on the pending charges. Therefore, an additional two days must be tacked onto this first day. R.C. 2945.71(E). The total number of days elapsed thus far against the 270 day limit is three days. B The next period of time is from August 5, 1989 through November 14, 1989 (the first trial date) inclusive. This period amounts to 102 days. The total of days elapsed thus far against the 270 day period is 105 days. C The next period of time is from November 15, 1989 to December 20, 1989 (the second trial date) inclusive. This continuance of 36 days was prompted due to the court being in trial. The continuance, with explanation provided, was filed prior to the deadline for speedy trial, was not objected to, and is therefore reasonable pursuant to R.C. 2945.72(H). See State v. Mincy (1982), 2 Ohio St. 3d 6; State v. Lee (1976), 48 Ohio St., 2d 208; State v. Robinson (March 2, 1989), Cuyahoga App. No. 54709, unreported, at 8. These 36 days are not chargeable against the State. The total number of days elapsed remains at 105. D -15- The next period of time is from December 21, 1989 through January 11, 1990 (the third trial date) inclusive, a period of 22 days. The journalized order setting this third trial date does not explain the reason for the sua sponte continuance. Thus, these days are chargeable against the State. See, State v. Mincy, supra, at 8; State v. Lee, supra, at 209; and State v. Gerardo (1983), 13 Ohio App. 3d 37, paragraph four of syllabus. The total days elapsed against the speedy trial deadline is now 127 days. E The next period of time is from January 12, 1990 through February 8, 1990 (the fourth trial date) inclusive. This period of trial continuance amounts to 28 days and was necessitated because "court and counsel engaged in trial." This sua sponte continuance, filed well before the speedy trial deadline, was not objected to by Cadwallader and is reasonable within the meaning of the tolling statute. See State v. Mincy, supra, at 8; State v. Lee, supra, at 209; and State v. Robinson, supra, at 8. Accordingly, these 28 days were not chargeable against the State for purposes of speedy trial. The total amount of days elapsed remains at 127 days. F The next period of time is from February 9, 1990 through March 12, 1990 (the fifth trial date) inclusive. This sua sponte trial continuance amounts to a period of 33 days. The journalized entry of this continuance gives no explanation for -16- this continuance of the trial date, so these days are chargeable against the State. State v. Mincy, supra, at 8; State v. Lee, supra, at 209; and State v. Gerardo, supra. The total days elapsed against the speedy trial deadline is now 160 days. G The next period of time is from March 13, 1990 through April 11, 1990 (the sixth trial date) inclusive, a period of 30 days. This continuance of trial was at the request of the State. It is not explained why this request was necessary. See State v. Gerardo, supra. Therefore, these days are chargeable against the State. The total days elapsed is now 190 days. H The next period of time is from April 12, 1990 through April 25, 1990 (the seventh trial date) inclusive, a period of 14 days. This sua sponte continuance was due to the unavailability of the court, was filed prior to the speedy trial deadline, and was not objected to by the defense. See State v. Mincy, supra, at 8; State v. Lee, supra, at 209; State v. Robinson, supra, at 8. This continuance is found to be reasonable and these days are not chargeable to the State. The total days elapsed remains at 190 days. I The next period of time is from April 26, 1990 through May 17, 1990 (the eighth trial date) inclusive, a period of 22 days. This sua sponte continuance of trial contains no explanation, -17- therefore, these days are chargeable against the State. The total days elapsed is now 212 days. J The next period of time is from May 18, 1990 through June 5, 1990 (the ninth trial date) inclusive, a period of 19 days. This continuance of trial was at the request of the defense. This continuance was journalized prior to the expiration of the speedy trial deadline, thus this defense request tolled the deadline. See State v. Eberhardt (1978), 56 Ohio App. 2d 193; State v. Robinson, supra, at 8. The total days elapsed remains at 212 days. The trial in this case began on June 5, 1990, fifty-eight days prior to the 270 day speedy trial deadline. Assignment overruled. Judgment affirmed. -18- 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. SARA J. HARPER, J., and AUGUST PRYATEL, J.*, CONCUR. JAMES D. SWEENEY PRESIDING JUDGE (*SITTING BY ASSIGNMENT: August Pryatel, Retired Judge of Court of Appeals of Ohio, Eighth Appellate District.) 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. .