COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60800 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : WILLIAM KONDRATUK : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, CR-251048. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Jonathan D. Greenberg, Esq. Peter Turner, Esq. 1215 Terminal Tower Cleveland, OH 44113 -2- DAVID T. MATIA, C.J.: Defendant-appellant, William Kondratuk, appeals from his conviction for two counts of trafficking in drugs (sell or offer to sell cocaine). The appellant's appeal involves the issues of speedy trial, failure to disclose the identity of a confidential informant, prosecutorial misconduct and verdict against the manifest weight of the evidence. The appellant's appeal is not well taken. I. THE FACTS A. THE APPELLANT IS CHARGED WITH A DRUG LAW VIOLATION IN ROCKY RIVER MUNICIPAL COURT On November 3, 1989, the appellant was arrested and charged in the Rocky River Municipal Court with the offense of trafficking in drugs in violation of R.C. 2925.03. The appellant's arrest was the result of an investigation which involved police officers from the City of Cleveland, City of Lakewood and the Westshore Enforcement Bureau. The investigation also involved a confidential informant who provided information concerning the possible purchase of cocaine through the appellant. On November 17, 1989, the Rocky River Municipal Court dismissed the charged offense of trafficking in drugs for want of prosecution. B. THE APPELLANT IS INDICTED BY THE GRAND JURY OF CUYAHOGA COUNTY On April 11, 1990, the appellant was indicted by the Grand Jury of Cuyahoga County for one count of trafficking in drugs (sell or offer to sell cocaine in an amount greater than the bulk amount but less than three times the bulk amount) in violation of -3- R.C. 2925.03(A)(5), one count of trafficking in drugs (possess cocaine in an amount greater than the bulk amount but less than three times the bulk amount) in violation of R.C. 2925.03(A)(4) and one count of trafficking in drugs (sell or offer to sell cocaine in an amount equal to or exceeding three times the bulk amount) in violation of R.C. 2925.03(A)(7). C. CAPIAS IS ISSUED FOR THE APPELLANT'S ARREST On April 26, 1990, a capias was issued for the appellant's arrest as a result of the failure of the appellant to appear for his arraignment. On April 26, 1990, the appellant was arrested by the Sheriff of Cuyahoga County pursuant to the capias on indictment. D. BOND IS SET FOR THE APPELLANT'S RELEASE FROM JAIL On May 8, 1990, the trial court set a bond in the amount of $2,500 cash or surety. On May 11, 1990, the appellant was arraigned whereupon a plea of not guilty was entered to the three counts of trafficking in drugs. In addition, the trial court continued the original bond as previously set at $2,500 cash or surety. E. JURY TRIAL AND CONVICTION On October 1, 1990, a jury trial was commenced with regard to the three counts of the indictment. At the conclusion of the trial, the jury found the appellant guilty of all three counts of trafficking in drugs. F. SENTENCE OF THE TRIAL COURT -4- On November 2, 1990, the trial court sentenced the appellant to incarceration within the Lorain Correctional Institution for a term of three years to fifteen years with three years actual and a mandatory fine of $5,000 as to the count of trafficking in drugs (sell or offer to sell cocaine in an amount greater than the bulk amount but less than three times the bulk amount) and a term of incarceration of five years to twenty-five years with five years actual and a mandatory fine of $7,500 as to the count of trafficking in drugs (sell or offer to sell cocaine in an amount equal to or exceeding three times the bulk amount). In addition, the trial court nolled the one count of trafficking in drugs (possess cocaine in an amount greater than the bulk amount but less than three times the bulk amount) on the basis of allied offenses of similar import. G. THE TIMELY APPEAL Thereafter, the appellant timely brought the instant appeal from his conviction for two counts of trafficking in drugs. II. FIRST ASSIGNMENT OF ERROR The appellant's first assignment of error is that: THE TRIAL COURT ERRED IN REFUSING TO DISMISS THE INDICTMENT DUE TO THE STATE'S FAILURE TO BRING APPELLANT TO TRIAL WITHIN THE STATUTORILY MANDATED TIME. A. ISSUE RAISED: APPELLANT DENIED RIGHT TO SPEEDY TRIAL The appellant, in his initial assignment of error, argues that he was denied the right to a speedy trial. Specifically, the appellant argues that the period of time which elapsed between -5- the dismissal of the trafficking in drugs charge by the Rocky River Municipal Court and the appellant's subsequent indictment for three counts of trafficking in drugs should have been counted as chargeable time against the statutory speedy trial period of two hundred and seventy days. The appellant thus argues that he was not brought to trial within two hundred and seventy days as mandated by R.C. 2945.71(C)(2). The appellant's first assignment of error is not well taken. B. STATUTORY PERIOD FOR A SPEEDY TRIAL WITH REGARD TO A FELONY R.C. 2945.71(C), which defines the time period in which a felony offense must be tried in order to afford a defendant his right to a speedy trial, provides that: (C) A person against whom a charge of felony is pending: (1) Notwithstanding any provisions to the contrary in Criminal Rule 5(B), shall be accorded a preliminary hearing within fifteen consecutive days after his arrest if the accused is not held in jail in lieu of bail on the pending charge or within ten consecutive days after his arrest if the accused is held in jail in lieu of bail on the pending charge; (2) Shall be brought to trial within two hundred seventy days after his arrest. (Emphasis added.) In addition, each day of actual incarceration of a defendant in lieu of bail must be counted as three days pursuant to the application of R.C. 2945.71(E). -6- C. FACTORS WHICH CAN TOLL THE RUNNING OF THE SPEEDY TRIAL STATUTE The running of the statutory period of two hundred and seventy days for a speedy trial, however, may be tolled pursuant to the application of R.C. 2945.72 which provides that: 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: (A) Any period during which the accused is unavailable for hearing or trial, by reason of other criminal proceedings against him, within or outside the state, by reason of his confinement in another state, or by reason of the pendency of extradition proceedings, provided that the prosecution exercises reasonable diligence to secure his availability; (B) Any period during which the accused is mentally incompetent to stand trial or during which his mental competence to stand trial is being determined, or any period during which the accused is physically incapable of standing trial; (C) Any period of delay necessitated by the accused's lack of counsel, provided that such delay is not occasioned by any lack of diligence in providing counsel to an indigent accused upon his request as required by law; (D) Any period of delay occasioned by the neglect or improper act of the accused; (E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused; (F) Any period of delay necessitated by a removal or change of venue pursuant to law; (G) Any period during which trial is stayed pursuant to an express statutory requirement, or -7- pursuant to an order of another court competent to issue such order; (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; (I) Any period during which an appeal filed pursuant to section 2945.67 of the Revised Code is pending. In the case sub judice, a period of three hundred and thirty- one actual days elapsed between the appellant's initial arrest on November 3, 1989 and the commencement of the appellant's trial on October 1, 1990. However, pursuant to the application of the speedy trial tolling statute as found at R.C. 2945.72 and applicable case law, a period of only one hundred and sixty- eight elapsed chargeable days ran between the date of the appellant's initial arrest and the commencement of trial. D. TIME PERIOD WAS TOLLED BETWEEN DISMISSAL OF ORIGINAL OFFENSE AND INDICTMENT Prior to an examination of the chargeable and tolled time periods applicable to the appellant's speedy trial claim, it is necessary to examine the appellant's principal claim that the period of time which elapsed between the dismissal of the offense of trafficking in drugs by the Rocky River Municipal Court and the subsequent indictment for three counts of trafficking in drugs was not tolled pursuant to the application of R.C. 2945.72. Contrary to the appellant's argument, the Supreme Court of Ohio has established that the time period between the dismissal of an original criminal charge and a subsequent indictment is tolled -8- and the speedy trial period does not begin to run until the appellant is arrested pursuant to a subsequent indictment. For purposes of computing how much time has run against the state under R.C. 2945.71 et seq., the time period between the dismissal without prejudice of an original indictment and the filing of a subsequent indictment, premised upon the same facts as alleged in the original indictment, shall not be counted unless the defendant is held in jail or released on bail pursuant to Crim. R. 12(I). State v. Broughton (1991), 62 Ohio St. 3d 253, paragraph one of the syllabus. The arrest of a defendant, under a subsequent indictment which is premised on the same underlying facts alleged in a previous indictment, is the proper point at which to resume the running of the speedy-trial period. (R.C. 2945.71 et seq., construed and applied.) State v. Broughton, supra, paragraph two of the syllabus. Thus, pursuant to the application of Broughton, the time period which ran between the Rocky River Municipal Court's dismissal on November 26, 1989 of the original charge of trafficking in drugs and the arrest of the appellant on April 26, 1990, which result from the subsequent indictment for three counts of trafficking in drugs, was tolled. This court shall now proceed to a historical review of the time period which culminated in the appellant's trial. E. PERIODS OF CHARGEABLE AND TOLLED TIME Historical Date and Activity Chargeable and Tolled Time 1) November 3, 1989 - appellant arrested, charged with -9- trafficking in drugs offense in Rocky River Municipal Court and released on personal bond in the amount of $7,500 -to- 2) November 17, 1989 - Rocky River 13 days Municipal Court dismissed without (chargeable time but see prejudice the charged offense of footnote one below) trafficking in drugs -to- 3) April 11, 1990 - appellant is 0 days indicted by the Grand Jury of (145 expired but tolled days Cuyahoga County for three per application of State v. counts of trafficking in drugs Broughton, supra.) -to- 4) April 26, 1990 - appellant fails 0 days to appear for arraignment; (15 days tolled since capias is issued and appellant appellant was not arrested is arrested by Sheriff of or arraigned per State v. Cuyahoga County Broughton, supra. -to- 5) May 8, 1990 - bond is set in 11 x 3 = 33 chargeable days the amount of $2,500 cash or surety and the appellant is released from custody 1 The failure of the appellant to appear for his arraignment as scheduled for April 26, 1990 and the subsequent arrest of the appellant on April 26, 1990 pursuant to a capias resulted in the termination of the appellant's original speedy trial period of two hundred and seventy days. A new speedy trial time period of two hundred and seventy days began to run on April 27, 1990, the day after the appellant's arrest on a capias. State v. Bauer (1980), 61 Ohio St. 2d 8; State v. Lockett (Feb. 18, 1988), Cuyahoga App. No. 53334, unreported; State v. Williams (June 18, 1987), Cuyahoga App. Nos. 52297, 52298, 52299, 52300, 52301, unreported; Crim. R. 45(A). -10- -to- 6) May 11, 1990 - appellant is 3 chargeable days arraigned and a plea of not guilty is entered to all three counts of the indictment -to- 7) June 12, 1990 - appellant's trial 32 chargeable days is scheduled for August 13, 1990 -to- 8) August 13, 1990 - appellant's 62 chargeable days trial date is rescheduled to August 24, 1990 at appellant's request -to- 9) August 24, 1990 - appellant 0 days is not brought to trial as (ll days tolled per R.C. originally scheduled 2945.72(H); appellant's motion for continuance) -to- 10) October 1, 1990 - appellant's 38 chargeable days trial before a jury is commenced Total Elapsed Chargeable Time 168 chargeable days F. APPELLANT WAS BROUGHT TO TRIAL WITHIN TWO HUNDRED AND SEVENTY DAYS The record before this court demonstrates that the appellant was brought to trial within two hundred and seventy days of his arrest on a capias for failure to appear for arraignment and thus the time period mandated by R.C. 2945.71 was met. State v. Bickerstaff (1984), 10 Ohio St. 3d 62. It should also be noted that an additional period of time may have been tolled as a result of the filing of the appellant's motion to suppress oral -11- statements (May 14, 1990), motion to suppress evidence (May 14, 1990), motion for discovery and to examine exculpatory and mitigating material (May 23, 1990), motion to reveal the confidential informant's name, address and criminal record (May 24, 1990), motion to compel discovery (June 1, 1990), motion to sever defendants (May 6, 1990), renewed motion to sever defendants (July 6, 1990) and motion in limine (August 6, 1990). Pursuant to the application of R.C. 2945.72(E), each of these motions would have tolled the running of the appellant's time period for speedy trial. The record, however, fails to disclose that the trial court journalized an order which either granted or denied any of the appellant's potentially time tolling motions. Absent such a journalization, this court will not toll the speedy time period pursuant to R.C. 2945.72 since nothing in the record demonstrates disposition within a reasonable period of time of the appellant's motions. State v. Packard (1988), 52 Ohio St. 3d 99; State v. Collura (January 24, 1991), Cuyahoga App. No. 57794, unreported. Nevertheless, the appellant was brought to trial within the applicable speedy trial period and thus the appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR The appellant's second assignment of error is that: THE TRIAL COURT ERRED IN FAILING TO REQUIRE THE DISCLOSURE OF THE UNDERCOVER INFORMANT'S IDENTITY. -12- A. ISSUE RAISED: TRIAL COURT ERRED BY FAILING TO ORDER THE IDENTIFICATION OF THE CONFIDENTIAL INFORMANT The appellant, through his second assignment of error, argues that the trial court erred as a result of the denial of the appellant's motion to reveal the identity of the confidential informant. Specifically, the appellant argues that the identity of the confidential informant was necessary in order to properly present the defense of entrapment. The appellant's second assignment of error is not well taken. B. MOTION TO IDENTIFY CONFIDENTIAL INFORMANT An initial review of the appellant's trial motion captioned "motion for an order to the prosecuting attorney to reveal the unidentified informant's name, address and criminal record: to reveal any agreements made between the state and the unidentified informant," as filed on May 24, 1990, reveals the following basis for the appellant's request for revelation. The right of the accused to confront the witnesses against him is a fundamental right made obligatory upon the States by the Due Process Clause of the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065 (1965). Defendant asserts that unless the name of the unidentified informant is revealed, counsel will be unable to effectively cross- examine said informant and defendant will have been denied his right to confrontation and cross-examination. For the above-stated reasons defendant respectfully request[s] this court order the disclosure of the informant's identity. -13- II. The United States Supreme Court, in Giglio v. United States, 405 U.S. 105 (1970), held that in a criminal case, any agreement made between the prosecution and a key government witness has a direct bearing on the important issue of the credibility of the witness and must be made available to be presented to the jury. (Emphasis added.) The appellant, through his motion to reveal the identity of the confidential informant, argued the issues of the right to confront all witnesses and the right to challenge the credibility of the confidential informant. Nowhere in the appellant's motion to reveal the identity of the confidential informant was the issue of entrapment raised. In addition, the appellant, during the course of trial, failed to challenge the trial court's denial of the motion to reveal the identity of the confidential informant thus waiving any error associated with the motion to reveal. State v. Awan (1986), 22 Ohio St. 3d 230; State v. Foldes (Oct. 25, 1990), Cuyahoga App. No. 57791, unreported. Notwithstanding the appellant's waiver of the claimed error, a substantial review of the appellant's second assignment of error also fails to disclose a basis for reversal. C. STANDARD OF REVIEW APPLICABLE TO MOTION TO IDENTIFY CONFIDENTIAL INFORMANT In State v. Williams (1983), 4 Ohio St. 3d 74, the Supreme Court of Ohio opined that the revelation of a confidential informant's identity hinges upon the right of the defendant to -14- confront his accusers versus the protection of the public and furtherance of effective law enforcement. In State v. Phillips (1971), 27 Ohio St. 294 [56 O.O.2d 174], we held that resolution of the question of whether the identity of an informant must be disclosed involves the balancing of competing interests. With respect to the criminal defendant, the fairness of the trial of an accused depends, in large part, on the ability of the defendant to confront his accusers. A fundamental component of the right to confront one's accusers is the opportunity to cross-examine the witness against him. Pointer v. Texas (1965), 380 U.S. 400. Despite the importance of the right of confrontation, under certain circumstances that right will be subject to the state's right to preserve the anonymity of informants. The underlying rationale for this "informant's privilege" was well-stated by Justice Corrigan in State v. Roe (1971), 26 Ohio St. 2d 2343, 246 [55 O.O.2d 480]: "*** The purpose of the privilege is the furtherance and protection of the public in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials, and, by preserving their anonymity, encourage them to perform that obligation." See Roviaro v. United States (1957), 353 U.S. 53, 59. Generally, when the degree of participation of the informant is such that the informant virtually becomes a state's witness, the balance swings in favor of requiring disclosure of the informant's identity. Conversely, where disclosure would not be helpful or beneficial to the accused, the identity of the informant need not be revealed. State v. Beck (1963), 175 Ohio St. 73 [23 O.O.2d 377], reversed on other grounds (1964), 379 U.S. 89; State v. Roe, supra, at page 247; State v. Phillips, supra, at page 298. Accord Roviaro v. United States, supra. -15- The balance which must be struck between these competing interests is indeed a fine and delicate one which of necessity dictates a case by case analysis. We find that the facts of the case at bar do not compel disclosure of the identity of this informant. In State v. Phillips, supra, we required disclosure of an informant's identity in the context of an illegal drug transaction. However, Phillips clearly represents a situation distinct from the instant cause and does not mandate a similar result. The key difference between Phillips and today's case is that in Phillips, the informant and the accused completed the drug transaction in a motel room out of the sight of the police. In that case, the state attempted to base a prosecution solely on the testimony of a police officer who saw the informant enter the motel room with marked money and exit with narcotics supposedly purchased therein, without disclosing the identity of the informant. One can easily see the inherent dangers in a situation where: the informant has made a drug purchase in association with a police investigation, the state seeks to preserve the identity of the informant, and there are no other possible witnesses to the transaction other than the informant and the accused. The case sub judice presents no such inherent dangers. In the case at bar, the testimony of Mr. K is in no way as critical as that of the informant in Phillips. Here, the transaction between appellee and the informant was witnesed, in its entirety, by a police officer in close proximity to the event. Moreover, the police officer testified that, at all times, Mr. K's hands were in plain sight so as to eliminate the possibility that Mr. K may have switched the packet given him by appellee for one containing cocaine. Thus, this is not a situation where proof of an element of the crime is dependent upon the testimony of the informant. It therefore cannot be said that this informant, without testifying, was actually a witness for the prosecution who was not subject to cross- -16- examination. State v. Williams, supra, at 75. In addition, the Supreme Court of Ohio in State v. Butler (1984), 9 Ohio St. 3d 156, dealt with the issue of the defense of entrapment and the identity of a confidential informant and held that: The issue presented in this appeal is whether the identity of the police informant who negotiated the transaction resulting in appellee's arrest and conviction must be revealed in light of State v. Williams (1983), 4 Ohio St. 3d 74, and its predecessors. We hold that Williams does not require divulgence of this informant's identity, and thus reverse the judgment of the court of appeals. In State v. Williams, supra, this court held: "The identity of an informant must be revealed to a criminal defendant when the testimony of the informant *** would be helpful or beneficial to the accused in preparing or making a defense to criminal charges." In Williams, we ruled that such testimony was not critical because the crime took place in full view of the police officer. We distinguished State v. Phillips (1971), 27 Ohio St. 2d 294 [56 O.O.2d 174], where divulgency was ordered, by the fact that in Phillips only the informant was present with the defendant when the time allegedly occurred. The Williams and Phillips standards necessarily require an analysis of each case's facts and circumstances as to whether the proffered reasons for abrogating the informant's confidentiality are valid. State v. Butler, supra, at 157. D. TRIAL COURT DID NOT ERR BY REFUSING TO ORDER THE IDENTIFICATION OF THE CONFIDENTIAL INFORMANT -17- In the case sub judice, it is abundantly clear that the identity of the confidential informant was not critical to the appellant's defense or the presentation of the state case. Testimony was principally adduced from a police officer who directly participated in the purchase of cocaine and directly observed the offer to sell cocaine. In addition, revelation of the identity of the confidential informant would not have established any of the elements of the charged offenses nor would such a revelation have contributed toward the appellant's defense since the drug transactions in question were entirely viewed by a police officer who actually testified at trial. Cf. State v. Parsons (1989), 64 Ohio App. 3d 63; State v. Gover (1989), 61 Ohio App. 3d 330. Applying the balancing test of Williams requires that this court affirm the judgment of the trial court which denied the appellant's motion to reveal the identity of the confidential informant. Thus, the appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR The appellant's third assignment of error is that: THE PROSECUTOR'S CONDUCT DURING TRIAL WAS SO EGREGIOUS THAT IT CONSTITUTED MISCONDUCT OF A LEVEL SO AS TO HAVE DEPRIVED APPELLANT OF A FAIR TRIAL. A. ISSUE RAISED: PROSECUTORIAL MISCONDUCT RESULTED IN UNFAIR TRIAL -18- The appellant, in his third assignment of error, argues that he was denied a fair trial as a result of prosecutorial misconduct which occurred during the course of trial. Specifically, the appellant argues that the prosecutor's conduct was improper and highly prejudicial as a result of the following: 1) improper questioning of the appellant as to his prior involvement with cocaine; 2) improper comments to the jury as to what was contained in tape recordings; and 3) improper cross- examination of the appellant as to defense counsel's "coaching" of the appellant prior to trial. B. STANDARD OF REVIEW APPLICABLE TO CLAIM OF PROSECUTORIAL MISCONDUCT A claim of prosecutorial misconduct must be evaluated in light of the entire case. Appellant next alleges that he was deprived of a fair and impartial trial because of the prosecutor's misconduct. He claims the prosecutor couched certain questions in such a way as to testify to matters not in evidence. Ohio courts have suggested that the effect of counsel's misconduct "must be considered in the light of the whole case." See, e.g., Mikula v. Balogh (1965), 9 Ohio App. 2d 250, 258 [38 O.O.2d 311]. And where misconduct of counsel "'*** is of such a prejudicial character that the prejudice resulting therefrom cannot be eliminated or cured by prompt withdrawal, and admonition and instructions from the court of the jury to disregard it, a new trial court should be granted, or the judgment reversed, notwithstanding cautions, admonition, and instructions by the trial judge.'" Book v. Erskine & Sons, Inc. (1951), 154 Ohio St. 391, 401 [43 O.O. 334]. -19- In general terms, the conduct of a prosecuting attorney during trial cannot be made a ground of error unless that conduct deprives the defendant of a fair trial. State v. Papp (1978), 64 Ohio App. 2d 203, 211 [18 O.O.3d 157]; State v. Wade (1978), 53 Ohio St. 2d 182, 186 [7 O.O. 3d 362]; State v. DeNicola (1955), 163 Ohio St. 140, 148 [56 O.O. 185]; Scott v. State (1923), 107 Ohio St. 475, 490-491. This, then, is the point at which we begin in our analysis of this issue. State v. Maurer (1984), 15 Ohio St. 3d 239, at 266. In addition, the conduct of a prosecuting attorney during the course of trial does not constitute reversible error unless the appellant can demonstrate prejudicial harm. State v. DePew (1988), 38 Ohio St. 3d 275. C. CONDUCT OF PROSECUTOR DURING TRIAL WAS NOT PREJUDICIAL An application of Maurer and DePew to the case sub judice fails to disclose that the appellant was prejudicially harmed by the conduct of the prosecuting attorney. A review of the record clearly demonstrates the prosecutor merely conducted permissible cross-examination of the appellant with regard to the appellant's knowledge and prior observance of cocaine abuse. In addition, the comments of the prosecutor during the playing of the tape recordings were not a summary of the evidence but merely instructive to the jury as to the identity of the voices and pertinent drug jargon. Finally, the comment of the prosecutor with regard to the "coaching" of the appellant was improper but harmless beyond a reasonable doubt in light of the overwhelming evidence of the appellant's guilt and the curative instruction -20- delivered by the trial court to the jury. Error, if any, was harmless beyond a reasonable doubt. State v. Maurer, supra, at 269. No prejudicial harm befell the appellant as a result of the conduct of the prosecutor and the appellant's third assignment of error is not well taken. V. FOURTH ASSIGNMENT OF ERROR The appellant's fourth assignment of error is that: AS TO COUNT THREE, THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A. ISSUE RAISED: CONVICTION AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE The appellant, in his fourth assignment of error, argues that the jury's verdict of guilty with regard to count three, sell or offer to sell cocaine in an amount equal to or exceeding three times the bulk amount in violation of R.C. 2925.03(A)(7), was against the manifest weight of the evidence. Specifically, the appellant argues that the failure of the State of Ohio to produce credible witnesses at trial resulted in a conviction which was against the manifest weight of the evidence. The appellant's fourth assignment of error is not well taken. B. STANDARD OF REVIEW APPLICABLE TO CLAIM OF MANIFEST WEIGHT The credibility of all witnesses and the weight of the evidence are primarily a matter for consideration by the trier of -21- fact. State v. DeHass (1967), 10 Ohio St. 2d 231. In addition, this court will not reverse the verdict of a jury where there is substantial and credible evidence upon which the trier of fact could reasonably conclude that each and every element of the charged offense has been proved beyond a reasonable doubt. State v. Eley (1978), 58 Ohio St. 2d 169; State v. Gaston (January 11, 1979), Cuyahoga App. No. 37846, unreported. C. APPELLANT'S CONVICTION NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE A review of the record demonstrates that the appellant's conviction for one count of trafficking in drugs (sell or offer to sell cocaine in an amount equal to or exceeding three times the bulk amount) was supported by substantial credible evidence. The testimony adduced at trial from a police officer who dealt directly with regard to the possible purchase of cocaine from the appellant and the tape recordings introduced at trial which evidenced the appellant's conversations with regard to the possible sale of cocaine amounted to substantial credible evidence which supported the appellant's conviction. Additionally, the appellant's conviction was supported by sufficient evidence to support each and every element of the charged offense. State v. Jenks (1991), 61 Ohio St. 3d 259. Thus, the appellant's conviction for the offense of trafficking in drugs, as charged in count three of the indictment, was not against the manifest weight of the evidence -22- and the appellant's fourth assignment of error is not well taken. Judgment affirmed. Judgment affirmed. 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. FRANCIS E. SWEENEY, J. and ANN McMANAMON, J., CONCUR. DAVID T. MATIA CHIEF JUSTICE 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. .