COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60671 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION WILLIE CRENSHAW, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 4, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-235,104 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Edward H. Kraus Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Avery H. Fromet 23625 Commerce Park Road Suite 206 Beachwood, Ohio 44122 -2- NAHRA, P.J.: Willie Crenshaw, defendant-appellant, appeals his conviction for drug trafficking, possession of a controlled substance, and having a weapon under a disability. On January 3, 1989, at approximately 9:00 p.m., Det. Charles Charney and Det. Nicholas Bartkiw of the Cleveland Police Department were driving in separate police cars in the area of Ansel and Simon Roads. The location in question was known to both officers as a high drug area. At such time the officers observed Crenshaw flagging down vehicles on the corner, an activity commonly engaged in by street drug dealers there. Upon their approach, the officers noticed Crenshaw walking westward and onto the porch of an abandoned house. Officer Bartkiw observed Crenshaw place a jar on the porch. Crenshaw then walked about ten feet further along the house and dropped an object from his pocket onto the ground. Such object, a .38 caliber revolver, was confiscated immediately thereafter by Det. Bartkiw. Det. Charney confiscated the jar on the porch which was a pill bottle containing thirteen separate rocks of crack cocaine. Each rock was packaged in individual baggies. Detective Bartkiw testified that he had made between thirty- five and forty drug arrests on the same corner in the past. He also revealed that in his experience he believed that Crenshaw had packaged the cocaine for resale and not for personal use. He revealed that cocaine is commonly sold in individually packaged ziplock corn envelopes. -3- Detective Charney, who made some five hundred drug arrests during his time with the Narcotics Unit, corroborated Det. Bartkiw's opinion that crack cocaine is sold for resale in little ziplock baggies. He testified that Crenshaw's thirteen packets of crack cocaine were prepared for resale. The prosecution also presented evidence that Crenshaw had prior convictions and was under a disability. Crenshaw was indicted for the following: count one entailed possession of a controlled substance in less than bulk amount pursuant to R.C. 2925.11; count two constituted drug trafficking pursuant to R.C. 2925.03; count three of the indictment was for having a weapon under a disability pursuant to R.C. 2923.13. Trial ensued and a jury found Crenshaw guilty of all three counts of the indictment. Prior to sentencing, the trial court found that counts one and two of the indictment were allied offenses of similar import. As a result, the trial court merged such counts. Thereafter, Crenshaw was sentenced by the trial court. This appeal follows. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN PERMITTING OFFICERS BARTKIW AND CHARNEY TO GIVE EXPERT OPINIONS AS TO WHAT THE APPELLANT'S PURPOSE WAS IN HAVING THE CRACK COCAINE IN HIS POSSESSION. Crenshaw maintains that the trial court erred by allowing Dets. Bartkiw and Charney to testify as experts that Crenshaw possessed the crack cocaine for purposes of resale. -4- We find that the detectives' testimony constituted lay opinion. Evid. R. 701 provides: If the witness is not testifying as an expert, his testimony in the form of opinion 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. Evid. R. 704 also provides: Testimony in the form of an opinion or inference otherwise admissable is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact. The decision of whether to admit or exclude evidence rests within the sound discretion of the trial court and will not be disturbed on appeal unless there was an abuse of that discretion. Urbana, ex rel. Newlin, v. Downing (1989), 43 Ohio St. 3d 109, 539 N.E.2d 140, certiorari denied (1989), 110 S. Ct. 325. A police officer may testify to matters within his experience and to his own observations which may assist the trier of fact in understanding other testimony. State v. Jells (1990), 53 Ohio St. 3d 22, 559 N.E.2d 464, certiorari denied (1991), 111 S. Ct. 1020; State v. Norman (1982), 7 Ohio App. 3d 17, 453 N.E.2d 1257. Here, Det. Charney testified that the amount of crack cocaine and the size of the rocks that Crenshaw possessed indicated that such cocaine was not for personal consumption. Charney revealed that in his three and a half years with the Cleveland Police Narcotics Unit, he had been involved in at least five hundred drug related arrests. Detective Bartkiw, who had made numerous drug arrests on the corner of Ansel and Simon, -5- testified that the individually wrapped packets of crack that Crenshaw possessed, and his flagging down of passing autos demonstrated his intent to sell the drugs. Based on the officers' experience and observations, their testimony was properly admitted by the trial court under Evid. R. 701. Appellant's assignment of error is overruled. II. Appellant's second assignment of error states: THE VERDICT OF GUILTY OF VIOLATION OF OHIO REVISED CODE SECTIONS 2925.03, 2925.11 AND 2923.11, WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The Supreme Court of Ohio has stated: In reviewing a claim that a jury verdict was against the weight of the evidence, or that the evidence was insufficient, a reviewing court's duty is to review the record to determine whether there was sufficient evidence for the jury to find defendant guilty beyond a reasonable doubt. State v. Brown (1988), 38 Ohio St. 3d 305, 528 N.E.2d 523, certiorari denied (1989), 109 S. Ct. 1177; see State v. Barnes (1986), 25 Ohio St. 3d 203, 209, 495 N.E.2d 922; see also State v. Eley (1978), 56 Ohio St. 2d 169, 383 N.E.2d 132, syllabus. Crenshaw contends that the testimony of Det. Charney conflicted with the testimony of Det. Bartkiw. Crenshaw points out that Det. Charney testified that he did not see Crenshaw place anything on the porch or toss an object onto the ground; however, Det. Bartkiw, who was standing near Charney, testified that he did see Crenshaw place a jar on the porch and drop an object on the ground. As a result of such an alleged -6- contradiction, Crenshaw asserts that the testimony of the witnesses lacked credibility and the verdict of the jury was against the manifest weight of the evidence. The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers-of-fact. State v. Thomas (1982), 70 Ohio St. 2d 79, 434 N.E.2d 1356. Detective Bartkiw testified that he observed Crenshaw waiving down motorists while standing in the corner in a high drug area. Such actions were indicative of selling drugs on the street. Crenshaw noticed the officers and walked to a porch where he placed a jar. Crenshaw proceeded to walk about ten more feet along the side of the house and dropped an object to the snow. Detective Bartkiw revealed that he observed Crenshaw's aforementioned actions. At such time, Bartkiw retrieved the .38 caliber gun that was on the ground and ordered Charney to grab the bottle that Crenshaw had placed on the porch. Thirteen packets of cocaine were found in the container. We find no reason to disturb the jury's evaluation of the witnesses' credibility; that Charney's angle of observation was different from Bartkiw's did not establish a contradiction in their testimony. There was sufficient evidence in the record to convict Crenshaw of possession of drugs, drug trafficking, and having a weapon under a disability. Appellant's assignment of error is overruled. III. -7- Appellant's third assignment of error states: THE COURT'S SENTENCING OF THE DEFENDANT ON O.R.C. 2925.03 AND O.R.C. 2925.11 WAS PLAIN ERROR AS THE OFFENSES WERE STEMMING FROM A SINGLE TRANSACTION INVOLVING THE SAME TYPE AND QUANTITY OF DRUGS AND CONSTITUTE ALLIED OFFENSES OF SIMILAR IMPORT FOR WHICH ONLY ONE SENTENCE MAY BE IMPOSED. Crenshaw argues that the trial court erred when it sentenced him. He contends that offenses of drug trafficking pursuant to R.C. 2925.03 and possession of a controlled substance pursuant to R.C. 2925.11 are allied offenses of similar import for which only one sentence should be imposed. A review of the record indicates that the trial court merged the two drug counts for purposes of sentencing. Therefore, the trial court did not err when it sentenced Crenshaw. Appellant's assignment of error is overruled. IV. Appellant pro se also filed nine supplemental assignments of error, the first of which states: THE COURT ERRED IN PERMITTING FINGERPRINT (SIC) EXPERT TO BRINGING FINGERPRINT ARREST CARDS, WITH THE DEFENDANTS (SIC) FINGERPRINTS FROM PAST RECORDS OF ARREST, WITH OUR LIMITED INSTRUCTIONS OR NO INSTRUCTIONS TO THE JURY CONCERNING EVIDENCE AND TESTIMONY OF PRIOR CONVICTIONS AND COURT CONDUCT IN PRACTICALLY INSTRUCTING THE JURY TO FIND THE DEFENDANT HAS BEEN CONVICTED OF A PRIOR FELONY OF (SIC) FELONIES (PG. T 170 5-12). Count three of the indictment required the state to prove beyond a reasonable doubt that Crenshaw was under a disability while he carried a weapon. The disability, a prior felony conviction, is an element of R.C. 2923.13. As a result, the -8- trial court did not err by allowing the testimony of Paul Mahon, a fingerprint expert. Mahon compared Crenshaw's fingerprints with those found in records of his prior convictions. We also note that Crenshaw failed to object to Mahon's testimony. As a result, any error released thereto was waived. State v. Williams (1977), 51 Ohio St. 2d 112, 364 N.E.2d 1364. Accordingly, appellant's assignment of error is overruled. V. Appellant's second supplemental assignment of error states: THE COURT ERRED IN PERMITTING THE GUN TO BE EXPECTED (SIC) INTO EVIDENCE, WITH NO IDENTIFYING MARKS, THAT IS PROPER POLICE PRECEDURE (SIC) WHEN A WEAPON IS CONFICATED (SIC) AND USED AS EVIDENCE, AND THERE WAS NO FINGERPRINT IDENTIFICATION TAKEN OF GUN OR PILL BOTTLE, EVEN THOUGH A FINGERPRINT EXPERT WAS CALLED TO TESTIFY FOR THE STATE. Crenshaw asserts that the gun produced at trial was improperly accepted into evidence by the trial court. He pointed out that the gun lacked the requisite marks of identification and that the police failed to follow the normal procedure of identification. We disagree. Detective Bartkiw testified that he observed Crenshaw drop the gun to the ground. Immediately thereafter Det. Bartkiw retrieved the gun and took it to the Cleveland Police Department. The gun was tagged on the same day of the offense. Detective Bartkiw identified the gun at trial as the one he found on the ground on January 3, 1988. He indicated that the tag that had been put on the gun had not been removed. As a result of the -9- foregoing, we believe that the trial court properly admitted the gun into evidence since the gun had been identified sufficiently. State v. Moore (1973), 47 Ohio App. 2d 181, 353 N.E.2d 866; see State v. Blevins (1987), 36 Ohio App. 3d 147, 521 N.E.2d 1105. Appellant's assignment of error is overruled. VI. Appellant's third supplemental assignment of error states: THE COURT ERRED IN CALLING A THIRD PARTY WITNESS FOR THE STATE. THE FINGERPRINT EXPERT, TO ADD CRITICAL WEIGHT TO THE STATE CAUSE IN A FORM NOT SUBJECT TO CROSS EXAMINATION TESTIFYING TO DEFENDANT (SIC) PAST, PRESENT, AND PENDING CHARGES. WHICH MISLEAD AND PREUDICE (SIC) THE JURY. Crenshaw maintains that the trial court erred by calling to testify a fingerprint expert, Paul Mahon. However, the record indicates that the state called Mahon as a witness and that he was not called to testify by the trial court. Mahon was able to testify that Crenshaw was under a disability while he carried a gun which, as mentioned above, is an element of R.C. 2923.13. Moreover, Crenshaw failed to object to Mahon's testimony. As a result, any error related thereto was waived. State v. Williams (1977), 51 Ohio St. 2d 112, 364 N.E.2d 1364. Accordingly, appellant's assignment of error is overruled. VII. Appellant's fourth assignment of error states: THE COURT ERRED IN CHARGING THE JURY CONCERNING INSTRUCTION TO JURY (SIC), IN WHICH PRIOR FELONY CONVICTION WERE BEFORE SAME JURY THAT WAS TRYING DEFENDANT ON PRINCIPAL CHARGES. -10- Crenshaw appears to argue that the trial court erred in its instruction to the jury concerning his prior felony conviction. However, Crenshaw failed to object to the trial court's instructions and thus any error was waived. State v. Williams (1977), 51 Ohio St. 2d 112, 364 N.E.2d 1364. Notwithstanding such waiver, we believe the trial court's instruction to the jury was proper. Instructions concerning Crenshaw's prior offenses were based on the evidence and were pertinent to R.C. 2923.13. Appellant's assignment of error is overruled. VIII. Appellant's fifth supplemental assignment of error states: THE COURT ERRED IN PERMITTING DETECTIVE BARTKIW (SIC) TESTIMONY TO BE ADMITTED INTO EVIDENCE, AFTER HE ADMITTED HE HEARD TESTIMONY OF PRIOR (SIC) OFFICER, COURT ORDER (SIC) A SEPARATION OF WITNESSES WITH COUNSEL TO ENFORCE THAT ORDER. Crenshaw asserts that the trial court erred by permitting the testimony of Det. Bartkiw. However, Crenshaw failed to object to such testimony. As a result, he waived any error related thereto. State v. Williams (1977), 51 Ohio St. 2d 112, 364 N.E.2d 1364. IX. Appellant's sixth supplemental assignment of error states: THE COURT ERRED IN PERMITTING THE CLOSING ARGUMENTS FOR THE STATE, IN PERMITTING PROSECUTOR (SIC) TO INFER THAT "THIS CASE IS ABOUT A CONVICTED FELON," AND TO BUILD STATE (SIC) CASE FROM DEFENDANTS PAST CONVICTION. -11- Crenshaw asserts that the trial court erred by permitting the state to refer to Crenshaw's prior convictions during closing arguments and to infer that "this case is about a convicted felon". Our review of the record indicates that the prosecution's statements during closing argument were proper. The prosecution's statements about Crenshaw's prior convictions were based on the evidence and made in accord with the elements of R.C. 2923.13. State v. Liberatore (1982), 69 Ohio St. 2d 583, 433 N.E.2d 561. Appellant's assignment of error is overruled. X. Appellant's seventh supplemental assignment of error states: THE COURTS (SIC) ERRED IN GIVING LIMITED INSTRUCTIONS TO THE JURY, ADMONISHING THE JURY NOT TO CONSIDER THE EVIDENCE OF PRIOR CONVICTION IN DETERMINING GUILT OR INNOCENCE ON THE PRIMARY CHARGES, APPELLANT DID NOT TAKE THE STAND. Crenshaw appears to argue that the trial court erred in its jury instructions. However, counsel for Crenshaw failed to object to such instructions. As a result, any error related to the jury instructions was waived. State v. Williams (1977), 51 Ohio St. 2d 112, 364 N.E.2d 1364; Evid. R. 103(A)(1). Accordingly, appellant's assignment of error is overruled. XI. Appellant's eight supplemental assignment of error states: THE COURT ERRED IN DENYING MOTION FOR A DIRECT VERDICT AND MOTION FOR AQUILTAL (SIC) RAISED BY DEFENSE -12- ATTORNEY DUE TO INSUFFICIENT EVIDENCE TO OBTAIN A JUST VERDICT. Crenshaw contends that the trial court erred by denying his Crim. R. 29 motion for acquittal based on a claim of insufficient evidence. Our review of the record, however, reveals that there was sufficient evidence to convict Crenshaw beyond a reasonable doubt. Detective Bartkiw testified that he observed Crenshaw standing on the corner in a high drug area. Crenshaw was flagging down motorists, an activity indicative of someone engaged in the sale of drugs there. Once he observed the police officers, Crenshaw placed a jar on the porch. He proceeded to walk along the side of the vacant house about ten feet where he dropped an object discovered later to be a gun. The container on the porch was confiscated immediately and discovered to contain thirteen individual packets of crack cocaine. As a result of the foregoing, we believe there was sufficient evidence to convict Crenshaw beyond a reasonable doubt of possession of drugs, drug trafficking and carrying a weapon while under a disability. Appellant's assignment of error is overruled. XII. Appellant's ninth supplemental assignment of error states: THE COURT ERRED IN NOT GIVING LIMITED INSTRUCTION TO THE JURY WHILE DEFENDANTS PAST RECORD WAS BEING USED AS EXHIBITS AND FINGERPRINT ARREST RECORD CARDS WERE USED AS EXHIBITS WITH THE JURY IN DELIBERATION, TO REACH THERE (SIC) VERDICT. -13- Crenshaw again appears to argue that the trial court erred by not instructing the jury properly with respect to how the jury should treat certain evidence. However, counsel for Crenshaw mounted no objection to the jury instructions. As a result, any such error related thereto was waived. Notwithstanding such waiver, our review indicates that the trial court's instructions to the jury were proper. Therefore, appellant's assignment of error is overruled. Accordingly, the judgment of the trial court is 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. ANN McMANAMON, J., and KRUPANSKY, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE 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. .