COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60350 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION ANTHONY GILBERT : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 2, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-251219 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MARY PAPCKE, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: JOHN B. GIBBONS 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 - 2 - KRUPANSKY, J.: Defendant appeals from his convictions for violation of R.C. 2925.03, Drug Law, and violation of R.C. 2923.24, Possession of Criminal Tools. The relevant facts follow: On the afternoon of March 28, 1990, the Cleveland Police Department was conducting a surveillance of the area of West 25th Street and Bridge Avenue in Cleveland, Ohio, an area known as "the projects". Det. Gingell, who was stationed in a factory near the intersection of West 25th Street and Bridge Avenue, through high-powered binoculars noticed a man by the name of "Rico" (known to be a former drug informant for the police) walk across a parking lot on Bridge Avenue and into one of the projects' courtyards where he was thereupon met by a person later identified as defendant. Det. Gingell observed the two men have a short conversation and then walk to another location. At this point Rico and defendant were nearer to Det. Heffer- nan, who was also involved in the area's surveillance and stationed on the ninth floor of a building at 1795 West 25th Street. Det. Gingell radioed his observations to Det. Heffernan, who was now also watching Rico and the defendant. Det. Heffernan, whose testimony was corroborated by Det. Gingell, stated the men were approximately fifty yards from him. He further stated he observed through his high-powered binoculars the following sequence of events: (1) Rico and defendant walk out of the projects area onto Bridge Avenue to a female seated in - 3 - a car parked on Bridge; (2) the three people then had a short conversation; (3) Rico handed defendant what appeared to be paper money; (4) defendant folded what Rico had handed him and put it in his pocket; (5) defendant nodded to the female; (6) the female then handed Rico an object; and (7) Rico placed the object in his right pants pocket. Dets. Heffernan and Gingell then observed the three separate. They radioed the suspects' descriptions and locations to officers stationed in unmarked police cars in the area and requested the officers stop and arrest the suspects. Det. Dvorak was one of the arresting officers of Rico. He stated that after Rico was stopped, Rico was patted down and an object wrapped in plastic was retrieved from his right pants pocket. It appeared to be a rock of crack cocaine. The object was later tested by the police Scientific Investigation Unit and analysis confirmed it to be crack cocaine, weighing in the amount of 0.010 grams. Det. Norman was the arresting officer of defendant. He testified that as he arrived at the scene of Rico's arrest, Det. Heffernan radioed him a description of the clothing of the other male suspect and told Norman he still had the suspect in direct view and "he's walking right towards you." Defendant was walking across Bridge Avenue toward the officers; Det. Norman thereupon arrested defendant. After his arrest defendant was patted down for weapons and an amount of money was discovered in his pocket which totaled fifty-two dollars. - 4 - Defendant was thereafter indicted in a two-count indictment, viz., count one, R.C. 2925.03, drug trafficking in less than the minimum bulk amount, and count two, R.C. 2923.24, possession of criminal tools, to wit: money. Both counts contained a violence specification that defendant had a prior conviction for aggra- vated burglary. Defendant was tried by a jury. The state presented the testimony of four officers involved in the arrest and the testimony of the SIU's forensic technician who made the analysis that the object in Rico's pocket was a rock of crack cocaine. After a motion for acquittal pursuant to Crim. R. 29, which was overruled by the trial court, defendant presented a character witness and testified on his own behalf. At the conclusion of all the evidence, the trial court overruled defendant's renewed motion for acquittal. The jury returned a verdict of guilty on both counts of the indictment. Defendant was thereupon sentenced to concurrent prison terms of three to ten years on count one and three to five years on count two, plus a fine and costs. Defendant filed a timely appeal of his convictions, citing three assignments of error for review. Defendant's first assignment of error follows: THE TRIAL COURT ERRED BY ALLOWING FACT WITNESSES TO GIVE OPINION TESTIMONY UNDER OHIO RULES OF EVIDENCE 702 AND 403(A). This assignment of error lacks merit. - 5 - Defendant argues the trial court improperly admitted the testimony of Det. Gingell that what Gingell was observing between the three suspects was a drug transaction, citing Evid. R. 702. This argument is not persuasive. It must first be noted Det. Gingell and the other officers were not testifying as expert witnesses; hence, Evid. R. 702 is inapplicable to the issue. Rather, Evid. R. 701 and 704 apply and state as follows: RULE 701. OPINION TESTIMONY BY LAY WITNESSES If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue. RULE 704. OPINION ON ULTIMATE ISSUE Testimony in the form of an opinion or infer- ence otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact. The decision whether to admit or exclude evidence is left to the sound discretion of the trial court and will not be reversed unless there was an abuse of that discretion. Urbana, ex rel. Newlin, v. Downing (1989), 43 Ohio St. 3d 109. Moreover, it is well settled that a police officer may testify concerning matters that are within his experience and observations which may aid the trier of fact in understanding the other testimony. State v. Jells (1990), 53 Ohio St. 3d 22; State v. Norman (1982), 7 Ohio App. 3d 17; State v. Morris (1982), 8 - 6 - Ohio App. 3d 12; Randle v. Gordon (Oct. 29, 1987), Cuyahoga App. No. 59261, unreported. In the case sub judice, Det. Gingell gave the following testimony: (1) he had been in charge of the Cleveland Police Department's Second District Vice Unit for a year and a half; (2) he had been employed by the Cleveland Police Department for over ten years; (3) 95% of his work was related to drug activity; and (4) he had conducted 40 or 50 surveillances of the West 25th Street and Bridge Avenue area. Concerning typical police surveillance procedure, he further testified as follows: Q. Is there a certain procedure that you follow, sergeant, and your men as far as your surveillance you conduct there? A. Yes, there is. Q. What is that procedure? A. Basically we will have either one or two men up in a perched position which is a surveil- lance position, and they will generally have binoculars or possibly a spotting scope. They will observe the activity in a certain area. There are several areas in the projects, especially in the Riverview area where we targeted. There are several areas in the project area that we have targeted to be drug trafficking areas. And we will surveil those areas. And as the perch officer sees drug transactions taking place, they will relay this information to undercover cars on the ground which will be in the immediate area, but secure from view of the people coming and going to the project area. And when a sale is observed, the officer will radio to the ground car the male that bought. - 7 - And generally what we will try to do is arrest that male away from the scene and then come back to get the particular dealer. If we arrested that male right on the street in view of everybody, that dealer would know in seconds that and he'd be gone into the woodwork somewhere. Q. What do you mean by the perch position? What does that mean? A. It is generally an elevated surveillance position. Although we have ground surveillance positions also. Thus, there was a substantial basis for Det. Gingell's opin- ion that what the officers had observed between defendant and the two other suspects was a "drug transaction," which opinion was based on experience and observation. Cf., Lee v. Baldwin (1987), 35 Ohio App. 3d 47. Defendant further challenges the following testimony: (1) "persons involved in the sale of drugs normally carry currency"; and (2) "money is a criminal tool as it was used in the transaction of the purchase of cocaine." However, since defendant did not object to this testimony in the trial court, this court will not consider the arguments. State v. Williams (1977), 51 Ohio St. 2d 112. Therefore, the trial court did not err in permitting the officers to give opinion testimony since both prongs of the test are met under Evid. R. 701. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error follows: - 8 - THE TRIAL COURT ERRED BY OVERRULING DEFENDANT- APPELLANT'S MOTION FOR JUDGEMENT OF ACQUITTAL, PURSUANT TO RULE 29, OHIO RULES OF CRIMINAL PROCEDURE. This assignment of error also lacks merit. Defendant makes the following two arguments, viz., (1) the state failed to present sufficient evidence to sustain defendant's conviction of the drug law offense, R.C. 2925.03; and (2) the state failed to present sufficient evidence to sustain the defendant's conviction of possession of criminal tools, R.C. 2923.24. Pursuant to Crim. R. 29(A), a motion to dismiss should be denied when reasonable minds might fairly find guilt beyond a reasonable doubt if the evidence is viewed in a light most favor- able to the state. State v. Hancock (1976), 48 Ohio St. 2d 147. A court may not enter judgment of acquittal where the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Apanovitch (1987), 33 Ohio St. 3d 19, 21; State v. Bridgeman (1978), 55 Ohio St. 2d 261. A reviewing court may not reverse a judgment of conviction in a criminal case where the record shows that a verdict of guilty was returned on sufficient evidence. State v. DeHass (1967), 10 Ohio St. 2d 230. R.C. 2925.03 states in pertinent part as follows: 2925.03 Trafficking in drugs. (A) No person shall knowingly do any of the following: - 9 - (1) Sell or offer to sell a controlled substance in an amount less than the minimum bulk amount; R.C. 2923.24 states in pertinent part the following: 2923.24 Possessing criminal tools. (A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally. In the case sub judice, the state presented the testimony of two eyewitnesses to the transaction between the three suspects. Det. Heffernan testified as follows: Q. Tell us what you did. What did you do? A. I observed a male we know from prior incidents come from north to south out of the project area onto Bridge Avenue. He was in company with another male, and they walked up to the female seated in the car which was parked on Bridge Avenue facing westbound, right across from West 24th Street. Q. What did you next observe? A. I observed the three of them converse for a short period of time. And then this male handed another male what appeared to be paper money. The male that received the money nodded to the female who in turn handed an object to the male who originally handed the money to the defendant. Det. Gingell's testimony, which corroborated that of Det. Heffernan, was as follows: Q. Once he [Rico] reached the courtyard, what if anything did you observe? A. Then I observed Rico meet with the defendant, Anthony Gilbert, in this general area right here. * * * - 10 - Q. What was the next thing then you observed? A. They had a short conversation, and then they walked directly back along this dotted line to Latherese McKinney who was, like I said, just leaning against this car over here. Q. What do you mean by they? A. Anthony Gilbert and Rico. * * * Q. What was the next thing you observed? A. I observed there to be a conversation here, and then I had Brian [Heffernan] take over the call on it as he had a lot better view than I did. * * * Q. Who did you observe at that time based upon the observations you are making? Who did you target as the buyer? A. Rico. Q. So where did he go? A. After he grouped together with Anthony Gilbert and Latherese McKinney, he then walked westbound on Bridge Avenue. Furthermore, the state presented the testimony of the arresting officers of Rico and defendant. Det. Dvorak found a packet of suspected rock cocaine in Rico's right back pocket, where Det. Heffernan stated Rico had put the object obtained from the female suspect. Det. Norman discovered paper money which Det. Heffernan had seen Rico hand defendant in defendant's pocket. Moreover, the forensic expert of the police SIU - 11 - department confirmed that the packet in Rico's pocket contained crack cocaine. The test for sufficiency of the evidence was set forth in State v. Martin (1983), 20 Ohio App. 3d 172 as follows: As to the claim of insufficient evidence, the test is 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. Based on the foregoing testimony, there was sufficient evi- dence whereby the jury could reasonably conclude that defendant knowingly sold a controlled substance, viz., cocaine, and that defendant possessed the money with a purpose and used it criminally. Therefore, in the case sub judice, the trial court could find the evidence sufficient to withstand a motion for acquittal in light of the cumulative consistent testimony pres- ented by the state. Accordingly, defendant's second assignment of error is not well taken and overruled. Defendant's third assignment of error follows: THE TRIAL COURT ERRED BY FAILING TO RULE, PURSUANT TO O.R.C. 2941.25(A), THAT THE COUNTS OF THE IN- DICTMENT WERE ALLIED OFFENSES OF SIMILAR IMPORT. This assignment of error also lacks merit. Defendant argues his "conduct could be construed to constitute two or more allied offenses of similar import and a conviction of only one offense may be obtained pursuant to O.R.C. - 12 - 2941.25(A)." Since the foregoing sentence is the only statement made to this court in support of defendant's third assignment of error, it is difficult to understand defendant's argument. R.C. 2941.25 provides as follows: 2941.25 Multiple counts. (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. In State v. Blankenship (1988), 38 Ohio St. 3d 116, the court stated as follows: This court has set forth a two-tiered test to determine whether two crimes with which a defendant charged are allied offenses of similar import. In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses. The elements of R.C. 2925.03, trafficking in drugs, and R.C. 2923.24, possession of criminal tools, hereinbefore set forth, do - 13 - not correspond. Moreover, defendant's conviction for a violation of R.C. 2925.03 pertained to the delivery of cocaine found in Rico's pocket, whereas defendant's conviction for violation of R.C. 2923.24 pertained to the receipt of money found in defendant's pocket given in exchange for the cocaine. Therefore, the crimes were completely separate crimes and committed with separate animi. The trafficking conviction in effect was for the conveying away of the cocaine, the criminal tool conviction was for the taking back of the money. Thus, this court cannot accept defendant's statement that the trial court committed error in sentencing defendant on both counts for which he was found guilty. Accordingly, defendant's third assignment of error is also overruled. Judgment affirmed. - 14 - 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. JOHN F. CORRIGAN, P.J., and SPELLACY, J., CONCUR JUDGE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .