COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60075 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION MICHAEL B. GORDON : : : 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: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PAUL F. MARKSTROM, ESQ. Cuyahoga County Prosecutor 208 Ohio Savings Building KAREN L. JOHNSON, ESQ. 22255 Center Ridge Road Assistant Prosecuting Attorney Rocky River, Ohio 44116 The Justice Center 1200 Ontario Street RICHARD WALSH, ESQ. Cleveland, Ohio 44113 Atrium Office Plaza, #100A 668 Euclid Avenue Cleveland, Ohio 44114 - 2 - HARPER, J.: Defendant-appellant, Michael Gordon, and co-defendant, George Cadwallader, were indicted by the Cuyahoga County Grand Jury on July 26, 1989 in a three-count indictment, CR-242064. The defendants were each charged with one count of the drug law (R.C. 2925.03(A)(5)), one count of permitting drug abuse (R.C. 2925.13), and one count of possession of criminal tools (R.C. 2923.24). Appellant was arrested on August 3, 1989 and released on bond August 4, 1989. A second indictment followed on November 22, 1989, CR- 246473. Appellant and Cadwallader were charged with the same offenses but the indictment included a prior felony drug offense against appellant on counts one and two. On June 5, 1990, the trial court nolled CR-242064 and trial by jury commenced in CR-246473. At the close of the state's case, the trial court dismissed count three of the indictment pursuant to Crim. R. 29. The jury subsequently returned guilty verdicts on counts one and two as to both defendants. The trial court sentenced appellant to a term of five (5) to twenty-five (25) years on the first count and to a concurrent term of six (6) months on the second count. The trial court also ordered forfeiture of appellant's automobile. Appellant appeals from the within verdict and sentence. A careful review of the record compels affirmance. - 3 - I. Detectives Bruce Wilkins and Fred L. Wellman of the City of Lakewood Police Department organized a controlled buy for March 14, 1989 with the help of an informant, John Deutsch. Deutsch contacted Detective Wilkins sometime in March, 1989 and informed 1/ him of the defendants' drug trafficking activity. Deutsch telephoned the defendants from the police department on March 14, 1989 to arrange the purchase. The parties discussed Deutsch's purchase of approximately one-half ounce of cocaine for $625 and then made arrangements for the sale. Detective Wilkins searched Deutsch and he was fitted with a battery-operated transmitter. The detectives manned two vehicles. Detective Wilkins could receive transmissions but could not record them whereas Detective Wellman's vehicle contained the tape recorder. Deutsch was driven to his mother's home by Detroit and Hird Avenues by Detective Wellman via the arrangements. Deutsch, who remained in sight on the sidewalk, was then picked up by appellant. Detective Wellman turned the recorder on when Deutsch entered the vehicle. Appellant, driving a black 1987 Audi, transported Deutsch to 9622 Silk Avenue, the residence of Cadwallader. Detective Wilkins was now monitoring the transmission from about two blocks away while Detective Wellman followed the Audi onto 1/ Deutsch was a cousin of appellant. Deutsch's motivation was the hope that in exchange for his cooperation, he would receive probation in driving while under suspension and domestic violence misdemeanors then pending in Lakewood Municipal Court. - 4 - Silk Avenue. Detective Wellman was able to view the house from his vehicle as he parked approximately two blocks from Cadwallader's address. Detective Wilkins heard appellant and Deutsch arrive at Cadwallader's residence. The officer then heard Deutsch, appellant and Cadwallader negotiating about the amount of cocaine that could be purchased for $625. Either there was no cocaine on the premises or there was not enough, so Cadwallader left his home with the buy money and drove away in appellant's Audi. Cadwallader returned approximately 45 minutes later whereupon Deutsch received an amount of cocaine. After leaving, appellant returned Deutsch to the area of Detroit and Hird Avenues where he was picked up by Detective Wellman. Deutsch was transported to a nearby parking lot. There, Detective Wilkins joined the other detective and appellant. A search of Deutsch, who was never out of sight from the time he left Cadwallader's home, revealed only a package of cocaine. II. Appellant's first assignment of error provides: "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN NOT DISCHARGING THE APPELLANT PURSUANT TO R.C. 2945.73 AS HE WAS NOT BROUGHT TO TRIAL WITHIN THE MANDATORY TIME PROVISIONS OF R.C. 2945.71." Appellant asserts that the trial court erred in not granting his pretrial motion for dismissal. He sought dismissal based upon the state's alleged violation of the speedy trial statutes, claiming that he was not brought to trial within the 270 day time limit set forth in R.C. 2945.71. Appellant thus urges this court - 5 - to reverse his conviction and discharge him pursuant to R.C. 2945.73(B). The Sixth Amendment to the United States Constitution guarantees a defendant a right to a speedy trial. Section 10, Article I of the Ohio Constitution provides a similar provision. A defendant's right to a speedy trial is codified in R.C. 2945.71. This statute was enacted as "'*** a rational effort to enforce the constitutional right to a public speedy trial of an accused charged with the commission of a felony or a misdemeanor and shall be strictly enforced by the courts of this state.'" State v. Packay (1980), 64 Ohio St. 2d 218, syllabus. Appellant was charged with various felonies. The state was thereby statutorily required to bring appellant to trial within 270 days after his arrest: "(C) A person against whom a charge of felony is pending: "*** "(2) Shall be brought to trial within two hundred seventy days after his arrest." R.C. 2945.71(C)(2). Appellant was arrested on August 3, 1989. His trial on charges set forth in the second indictment commenced on June 5, 1990. The 270 day statutory time limit was clearly exceeded as approximately 307 days elapsed between the date of arrest and the commencement of trial. The R.C. 2945.71 time limits may be extended, however, pursuant to R.C. 2945.72. This statute provides: - 6 - "The time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by the following: "**** "(H) The period of any continuance granted on the accused's own motion, and the period of any reasonable continuance granted other than upon the accused's own motion; "***" Whether a continuance sua sponte, or otherwise, extends the speedy trial time requires the meeting of certain requirements. The continuance must be journalized and it must identify the party to whom the continuance is chargeable. State v. Benson (1985), 29 Ohio App. 3d 321. If the continuance is sua sponte, the journal entry must also reflect the reason for it. Id. Moreover, a sua sponte continuance due to a crowded court docket is deemed reasonable within the meaning of R.C. 2945.72(H) if the defendant fails to object to such court action. See, State v. Lee (1976), 48 Ohio St. 2d 208; State v. Robinson (Mar. 2, 1989), Cuyahoga App. No. 54709, unreported. In the case sub judice, the first relevant journal entry, filed January 2, 1990, reveals that trial is set for January 11, 1990. The trial was rescheduled for February 8, 1990. The trial court's journal entry, which was filed on January 18, 1990 reflects that the continuance was due to the court's and counsel's involvement in trial. This first sua sponte continuance was properly journalized. Appellant's speedy trial - 7 - time was thus extended pursuant to R.C. 2945.72(H) for 28 days, the period between January 11, 1990 to February 8, 1990. A journal entry was filed on February 13, 1990 in which it was indicated that trial was once again continued to March 12, 1990. Neither the reason for the continuance nor the requesting party was set forth on the entry. This continuance does not extend the appellant's speedy trial time as the journal entry failed to satisfy the requirements of Benson, supra. A third continuance was journalized on March 26, 1990. The journal entry indicates trial was rescheduled for April 11, 1990 at the state's request. This continuance which must be considered sua sponte also fails to satisfy the Benson requirements in light of the absence of a reason. The "court's unavailability" caused another continuance to April 25, 1990 which was journalized on April 18, 1990. This fourth continuance which was also sua sponte likewise suffered inadequacy under Benson, supra. Although a "crowded court docket" is a satisfactory reason, a court's "unavailability" lacks sufficiency as it does not expressly explain the reason for the "unavailability". A May 29, 1990 journal entry reflects that the trial is reset to May 17, 1990. Appellant's speedy trial time was not extended pursuant to Benson, supra. Neither the requesting party nor a reason for the continuance was stated on the journal entry. - 8 - Finally, another May 25, 1990 journal entry indicates that the May 17, 1990 trial is rescheduled to the actual trial date of June 5, 1990 at the defendant's request. This sixth continuance extended the appellant's speedy trial time as it was requested by him. Thus, the time was extended 19 days, the period between May 17, 1990 to June 5, 1990 pursuant to R.C. 2945.72(H). Therefore, only two continuances tolled appellant's speedy trial time pursuant to R.C. 2945.72(H). The total number of days tolled as a result of the trial court's sua sponte continuance, and the appellant's, was 47. The statutory time period set forth in R.C. 2945.71 is thereby extended 47 days. R.C. 2945.72; see, State v. Bickerstaff (1984), 10 Ohio St. 3d 62, 67. The subtraction of 47 days from the total numbers of days between appellant's arrest and trial, 307, results in the total of 260 days. The appellant was, therefore, brought to trial within the 270 day statutory time period. Accordingly, appellant's first assignment of error is overruled. III. Appellant, in his second assignment of error, asserts that: "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN NOT STATING ITS ESSENTIAL FINDINGS OF FACT IN SUPPORT OF ITS DENIAL OF APPELLANT'S MOTION FOR DISCHARGE UNDER R.C. 2945.71." Appellant's counsel requested that the trial court set out its "calculations or reasoning on the record" after the court denied appellant's motion to dismiss. The court responded: - 9 - "THE COURT: It would be possible, but I'm not going to. I'm indicating that, according to my calculations, the defendants have not -- the 270 day period has not been reached, based upon the continuances of 11-14-89 and 5-17-90 -- to 5-17-90." Appellant, relying on Bryan v. Knapp (1986), 21 Ohio St. 3d 64, argues that the court's response was insufficient and requires a reversal of his conviction and a remand of the case. The Ohio Supreme Court in Bryan held that, upon a defendant's request, a trial court must state its essential findings of fact in support of its denial of a motion to discharge for failure to comply with R.C. 2945.71 requirements. Id., syllabus. The court cited Crim. R. 12(E) as controlling; the rule provides: "A motion made before trial other than a motion for change of venue, shall be timely determined before trial. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record." (Emphasis added.) Since the trial court was required to determine factual issues concerning the delay of trial, Crim. R. 12(E) required that its essential findings be placed on the record. Id., 65. The Supreme Court remanded the case to the trial court for its findings because "[w]ithout such findings, neither the court of appeals nor this court can properly review the propriety of the trial court's ruling." Id. The trial court in Bryan responded to the defendant's request for specific findings of fact in support of its denial by stating, "'I'm afraid your [sic] not entitled to that finding and the record speaks clearly enough that all of these delays have - 10 - been occasioned by the defendant. The motion is overruled.'" Id., 64. In the instant appeal, however, the trial court specifically stated on the record that two particular continuances extended the appellant's speedy trial time. This "finding of fact" distinguishes this case from Bryan, supra. Appellant's second assignment of error is overruled. IV. Appellant's third assignment of error provides: "AS THERE WAS NO EVIDENCE THAT THE APPELLANT ACTED AS A PRINCIPAL WITH RESPECT TO THE CHARGE OF TRAFFICKING IN DRUGS AND AS NO CHARGE ON AIDING AND ABETTING WAS GIVEN PREJUDICIAL ERROR WAS COMMITTED AS THE COURT FAILED TO INSTRUCT THE JURY ON AN ESSENTIAL ELEMENT OF THE CRIME CHARGED." The trial court did not instruct the jury on complicity. He argues that the failure to instruct was prejudicial error as there was no evidence that he violated R.C. 2925.03(A)(5) as a principal offender. The appellant never requested the trial court to so instruct the jury. Appellant also failed to object to the trial court's instruction on the charge of trafficking in drugs. A claimed error not objected to will not be noticed on appeal unless it rises to the level of plain error. Crim. R. 30(A). See, State v. Underwood (1983), 3 Ohio St. 3d 12; State v. Cooperrider (1983), 4 Ohio St. 3d 226. Plain error is only found where but for the error, the outcome of the trial clearly would have been otherwise. See, e.g., State v. Long (1978), 53 Ohio St. 2d 91, paragraph two of the syllabus; State v. Greer (1988), 39 Ohio St - 11 - 3d 236. The record herein fails to demonstrate the existence of plain error. R.C. 2925.03(A)(5) provides: "(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;" Triers of fact, in ascertaining whether there is sufficient evidence to prove beyond a reasonable doubt that a defendant knowingly sold or offered to sell a controlled substance should consider the totality of the circumstances. State v. Patterson (1982), 69 Ohio St. 2d 445, 447. In construing R.C. 2925.03, "knowingly" is an adverb which modifies "offer". Id. 2/ "Knowingly" is defined in R.C. 2901.22(B) and "offer" is a common word which does not require statutory definition. Id. "Sale", for purposes of R.C. 2925.03, is defined by R.C. 3/ 3719.01(EE) . State v. Sway (1984), 15 Ohio St. 3d 112. 2/ R.C. 2901.22(B) reads: "(B) 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." 3/ R.C. 3719.01(EE) reads: "'Sale' includes delivery, barter, exchange, transfer, or gift, or offer thereof, and each such transaction made by any person, whether as principal, proprietor, agent, servant, or employee." - 12 - The evidence in the case sub judice clearly reveals that appellant committed the offense of trafficking in drugs. A defendant who offers to provide narcotics as "a link in the chain of supply" is guilty of "offering to sell". State v. Latina (1984), 13 Ohio App. 3d 182, 187, citing State v. Scott (1982), 69 Ohio St. 2d 439, 441. Appellant contacted Cadwallader after Deutsch contacted appellant to inquire about a purchase of cocaine. Appellant arranged the meeting between himself, Deutsch, and Cadwallader and even transported Deutsch to the meeting. Appellant was present during the actual sale. This evidence clearly establishes the elements of the offense of drug trafficking. Appellant's third assignment of error is overruled. V. Appellant, for his fourth assignment of error, asserts that: "PREJUDICIAL ERROR WAS COMMITTED WHEN AN UNINTELLIGIBLE TAPE WAS PLAYED TO THE JURY AND A STATE'S WITNESS WAS PERMITTED TO RELATE WHAT WAS BEING SAID." Appellant contends that the admission of the tape recording into evidence was prejudicial error. Appellant relies on State v. Lane (1988), 48 Ohio App. 3d 172, in support of this contention. Appellant, however, failed to object to the introduction of this evidence at trial. Absent an objection on the record, any claimed error is waived upon appeal. State v. Williams (1977), 51 Ohio St. 2d 112, paragraph one of the syllabus; State v. Broom (1988), 40 Ohio St. 3d 277, 288-289. This court must, therefore, - 13 - determine whether the admittance of this evidence constituted plain error. Crim. R. 52(B); Broom, supra. In Lane, the Hamilton County Court of Appeals found that the admission of an unintelligible tape recording of statements made to a police officer by a defendant was not harmless error. Lane, supra, paragraph one of the syllabus. The introduction of the recording was not harmless error due to the possible danger that the jury could believe the tape contained incriminating material solely based upon the prosecution's introduction of it. Id. In the instant appeal, the tape recording was offered by the state as evidence of the drug sale between appellant, Cadwallader, and Deutsch. The officers who witnessed Deutsch's activity testified as to the taped conversation since they directly overheard it. Detective Wellman also monitored the recording machine. The batteries in the transmitter died approximately one hour after the transmitter was placed on Deutsch. The total transaction was, therefore, not completely recorded. However, unlike the recording introduced into evidence in Lane, the recording here was not unintelligible. Portions of the recording were audible. In State v. James (1974), 41 Ohio App. 2d 248, 250, the court explained that proof of a conversation may be offered in two ways. The party could introduce either a recording of the conversation or testimony by a witness who overheard it. Both forms of proof are considered the best evidence and equally competent. Id., 250. - 14 - Since the original tape was available here, it remained the best evidence to prove the content thereof. Evid. R. 1002. Even if the whole tape was not fully audible, it remained the best evidence. State v. Holmes (1987), 36 Ohio App. 3d 44, 50. The tape was complete, authenticated, and within police custody until trial. The officers' testimony corroborated the contents of the tape in light of their surveillance and listening to the conversation between Deutsch, Cadwallader and the appellant. The officers further testified about the problems with the tape recording -- the static and the dead batteries. Appellant, however, never challenged that the tape was not the tape which was taken from the recording device worn by Deutsch. Therefore, the trial court did not abuse its discretion in admitting the tape recording into evidence. See, State v. Gotsis (1984), 13 Ohio App. 3d 282; State v. Christopher (Apr. 26, 1990), Cuyahoga App. No. 56870, unreported. Appellant's fourth assignment of error is overruled. Judgment affirmed. - 15 - 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. JAMES D. SWEENEY, P.J., and PRYATEL*, J., CONCUR. SARA J. HARPER JUDGE *Judge August Pryatel, Retired, of the Eighth District Court of Appeals, sitting by assignment. 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. .