COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61161 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION HARRY FULLEN : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 3, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-256985 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor LINDSAY JERRY, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: CHRISTOPHER R. FORTUNATO 11705 Detroit Avenue Lakewood, Ohio 44107 - 2 - KRUPANSKY, J.: Defendant-appellant Harry Fullen appeals from his conviction for possession of cocaine in violation of R.C. 2925.11 with an accompanying specification based upon his conviction for a prior identical offense. Defendant was indicted by the Cuyahoga County Grand Jury with Edward Jacobs on November 7, 1990. The case proceeded against defendant only since Jacobs could not be found prior to the scheduled trial date. On December 10, 1990 the trial court denied defendant's pre-trial motion to suppress the cocaine recovered by the police from Jacobs and continued the trial until the following day to enable defendant to obtain civilian clothing. The record demonstrates that a jury was impaneled on December 11, 1990 and the trial court thereafter granted the prosecution a continuance following the conclusion of opening arguments at 4:03 p.m. since two police witnesses were not present to testify. The trial judge again continued the case from 9:00 a.m. until 2:00 p.m. over defendant's objection the following day since the officers were attending a liquor hearing in Columbus, Ohio during the morning hours. Cleveland police detectives Jamal Ansari and David Kornatowski testified when the trial resumed concerning the circumstances of their surveillance near East 174th Street and Tarkington Avenue during the evening of August 24 and early - 3 - morning hours of August 25, 1992. The officers testified they were part of a three car detail responding to numerous complaints in this high crime and high drug area. Detective Ansari testified that he observed several individuals engaging in what appeared to be drug transactions in the area that evening between 10:00 p.m. and 12:00 p.m. Detective Kornatowski likewise testified that he observed through binoculars a group of individuals waving down cars and exchanging objects with the car occupants before the cars would drive away leaving the scene. Detective Ansari specifically testified that he observed defendant for approximately 10 to 15 minutes shortly after midnight. Ansari stated that defendant passed some "object" to his companion Jacobs which Jacobs placed in his mouth as the police approached. Jacobs subsequently, at the request of an officer, "spit out what turned out to be 6 rocks of crack cocaine." (Tr. 29.) The police subsequently arrested defendant and Jacobs. Scott Miller, a Cleveland police scientific examiner, testified concerning various tests he conducted on the substances recovered by the police from Jacobs. Miller stated that based upon his experience and the results of two generally accepted scientific tests, he concluded that the substance was cocaine, a Schedule II drug, weighing less than the bulk amount. The trial court overruled defendant's subsequent objection concerning the admissibility of this testimony due to the prosecutor's failure - 4 - to produce the drug report prior to trial. The trial court also denied defendant's Crim. R. 29 motion for judgment of acquittal. Defendant testified on his own behalf. Defendant stated that he had been jogging in Glen Park from approximately 10:00 p.m. until shortly before he was arrested. Defendant stated that he was walking to a friend's house when he encountered Jacobs. Defendant acknowledged that a vehicle approached Jacobs and defendant on the street corner and that he told the occupants he had no drugs. Defendant stated that he was attempting to give Jacobs a cigarette when the police arrived, but that the cigarette was crushed and not recovered by the police. Defendant denied possessing any drugs and stated that he was complying with the terms of his probation following his conviction for an identical offense three weeks earlier. The record demonstrates that defendant subsequently declined to call Jacobs as a witness although Jacobs had been located since the beginning of trial. The trial court thereafter denied defendant's renewed motion for judgment of acquittal and submitted the case to the jury following the trial court's instructions. The jury found defendant guilty of possessing cocaine in violation of R.C. 2925.11 with the accompanying specification based upon his prior drug conviction. Defendant timely appeals raising five assignments of error. - 5 - Defendant's first assignment of error challenges the trial court's admission of evidence from the police scientific examiner as follows: THE TRIAL COURT ERRED WHEN IT DID NOT EXCLUDE THE DRUG REPORT TESTIMONY FOR THE REASON THAT THE DRUG REPORT WAS NOT PREVIOUSLY DISCOVERED TO THE APPELLANT PRIOR TO TRIAL PURSUANT TO CR. R. 16 AND R.C. 2925.51. Defendant's first assignment of error lacks merit. Defendant contends the trial court improperly failed to exclude the "drug report testimony" from Scott Miller since the laboratory drug analysis report was not presented to defense counsel pursuant to R.C. 2925.51(B) until the day of trial. R.C. 2925.51 governs the use of laboratory reports as prima facie evidence of the content, identity and weight of chemical substances in criminal prosecutions under R.C. Chapter 2925 and provided in pertinent part as follows: (B) The prosecuting attorney shall serve a copy of the report on the attorney of record for the accused, or on the accused if he has no attorney, prior to any proceeding in which the report is to be used against the accused other than at a preliminary hearing or grand jury proceeding where the report may be used without having been previously served upon the accused. (Emphasis added). Defendant relies upon State v. Reese (1978), 56 Ohio App.2d 278, 280-281, to support his argument the laboratory report and related testimony identifying the six rocks as crack cocaine should not have been admitted in the case sub judice. However, the record demonstrates that unlike State v. Reese, the lab - 6 - technician in the case sub judice provided expert opinion testimony and the laboratory report was not marked as an exhibit or admitted into evidence. Defendant neither made a pretrial motion to compel production of the laboratory drug analysis report nor a motion in limine to exclude the related testimony of the laboratory technician. During trial defendant did not object to the qualifications of Miller as an expert, the chain of custody of the substances or Miller's testimony concerning the content, identity and weight of the cocaine. See also State v. Rodriquez (1990), 66 Ohio App.3d 5, 16-17. Defendant likewise failed to make any subsequent motion to strike this testimony. Under the circumstances, defendant has failed to demonstrate any prejudice resulting from the admission of the expert testimony concerning the cocaine. Defense counsel was afforded, and exercised, an opportunity to conduct a complete cross- examination of the laboratory technician concerning his identification of the substances and the routine tests performed. As a result, the trial court did not abuse its discretion in overruling defendant's objection to the admissibility of this testimony. Moreover, as noted by the trial court, any error in admitting such testimony was harmless beyond a reasonable doubt since detective Ansari had already testified without objection that the six rocks were "crack cocaine." (Tr. 29, 84). - 7 - Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error challenges the trial court's denial of his motion to suppress the cocaine as follows: THE TRIAL COURT ERRED WHEN IT OVERRULED THE APPELLEE'S [SIC] MOTION TO SUPPRESS WHEN IT SHOULD HAVE GRANTED STANDING TO THE APPELLEE [SIC] IN VIOLATION OF ARTICLE I, SECTIONS 10 AND 14 OF THE OHIO CONSTITUTION. A. OHIO SHOULD ADOPT A POLICY OF AUTOMATIC STANDING AS IN NEW JERSEY. Defendant's second assignment of error lacks merit. Defendant contends the trial court improperly overruled his pretrial motion to suppress on the grounds that defendant lacked standing to suppress the cocaine the police discovered in the mouth of Jacobs. However, it is well settled that a defendant bears the burden of demonstrating that he had a possessory or proprietary interest in the area searched or items seized to assert a violation of his Fourth Amendment rights in connection with a motion to suppress the evidence obtained from such search or seizure. State v. Woods (June 25, 1991), Cuyahoga App. No. 60585, unreported (citations omitted). Defendant declined to offer any testimony at the suppression hearing. As a result, the trial court did not err in denying defendant's motion to suppress the evidence since defendant presented no evidence to support his claim of standing. Id. Accordingly, defendant's second assignment of error is overruled. - 8 - Defendant's third assignment of error complains about the continuances granted by the trial court during the trial as follows: THE TRIAL COURT ERRED WHEN IT DID NOT DISMISS THE CASE AND DISCHARGE THE APPELLANT WHEN THE STATE'S WITNESSES WERE NOT AVAILABLE DURING THE TIME IT WAS PUTTING ON ITS CASE-IN-CHIEF. Defendant's third assignment of error lacks merit. Defendant contends the trial court improperly granted two continuances to enable the prosecution to present testimony from two police officers who had been subpoenaed but were inadvertently unavailable to testify. However, it is well- settled that a trial court's determination whether to grant a continuance will not be reversed absent an abuse of discretion. State v. Swanson (Nov. 9, 1989), Cuyahoga App. No. 56111, unreported. Defendant has failed to demonstrate any prejudice resulting from the two brief continuances granted to the prosecution. The record demonstrates that these continuances were granted after the trial court accommodated defendant by granting a continuance to obtain civilian clothing to wear during trial. Defendant did not request the trial court explain the reason for the delay in commencing the trial to the jury and any inference of prejudice under the circumstances would be purely speculative. Accordingly, defendant's third assignment of error is overruled. - 9 - Defendant's fourth assignment of error challenges the trial court's instructions to the jury as follows: THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY OF COMPLICITY, ACCOMPLICE, AND AIDER AND ABETTOR WHEN THE STATE OF OHIO DID NOT INDICT THE APPELLANT CHARGING HIM WITH ACTING IN THAT CAPACITY NOR DID THE STATE OF OHIO PRESENT EVIDENCE TO THAT EFFECT IN THE TRIAL. Defendant's fourth assignment of error lacks merit. Defendant contends the trial court improperly instructed the jury on the issues of complicity, accomplice and aider and abettor since defendant's indictment did not raise these issues and such instructions were unsupported by the evidence. However, R.C. 2923.03(F) specifically authorizes an indictment for complicity in the commission of an offense to be stated in terms of underlying offense and provides as follows: (F) Whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender. A charge of complicity may be stated in terms of this section, or in terms of the principal offense. (Emphasis added). As a result, defendant's citation to case law predating this provision to support his argument, viz., the indictment did not raise these issues is unpersuasive. The trial court likewise rejected defense counsel's objection that the challenged instructions were not warranted by the evidence in the following colloquy: MR. FORTUNATO: I objected to the instruction on aiding and abetting. - 10 - THE COURT: Why is that. MR. FORTUNATO: Because I feel that was not something that was brought out in the trial. It is just a question of whether the defendant was possessing the illegal substance in question. I think that could have stood by itself without having to be brought in. THE COURT: Wasn't there testimony, if believed, that your client passed something, and that was the cocaine? MR. FORTUNATO: I see what you mean there, but I still object to it. THE COURT: O k a y . Objection is overruled. (Tr. 127). As noted above, the record contains testimony of detective Ansari that he observed defendant give an "object" to Jacobs which Jacobs in turn placed in his mouth. This evidence clearly depicts defendant and Jacobs were acting in concert. Detective Ansari testified the officers thereafter recovered the six rocks of "crack cocaine" when Jacobs spit them out of his mouth. Although defendant testified he passed a cigarette to Jacobs, detective Kornatowski testified that he did not observe defendant or Jacobs smoking cigarettes prior to their arrest. Such testimony, when coupled with the officers' testimony that defendant and Jacobs had been engaging in what appeared to them to be drug transactions, was sufficient to warrant the challenged instructions. Accordingly, defendant's fourth assignment of error is overruled. - 11 - Defendant's fifth assignment of error challenges the prosecution's failure to produce certain photographs allegedly taken by the police at the time of defendant's arrest as follows: THE APPELLANT WAS DENIED DUE PROCESS OF LAW PURSUANT TO THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN THE PROSECUTOR AND THE CLEVELAND POLICE DID NOT PROVIDE ALL THE EVIDENCE GATHERED FOR TRIAL SOME OF WHICH COULD HAVE BEEN EXCULPATORY. Defendant's fifth assignment of error lacks merit. Defendant contends that he was denied due process by the prosecution's failure to produce photographs allegedly taken by the police at the scene of defendant's arrest. The testimony in the record concerning the existence of any such photographs is equivocal. Defendant stated that the police took two photographs while he was lying face down on the pavement at the time of his arrest. (Tr. 77). Although Detective Ansari testified that it was "normal procedure" to take photographs, (Tr. 43), Detective Kornatowski testified that no such photographs were taken in the case sub judice. (Tr. 56). Based upon this testimony, the trial court could properly conclude that no photographs were taken. Without viewing such photographs it is difficult to imagine what exculpatory information they might contain since defendant admitted to his presence and arrest on the scene with Jacobs. However, even if we assume arguendo that such photographs were in fact taken, were exculpatory and were not produced by the - 12 - prosecution, reversal of defendant's conviction is unwarranted since defendant failed to produce any evidence the prosecution withheld such evidence in bad faith in the case sub judice. State v. Lewis (1990), 70 Ohio App.3d 629; State v. Jones (1990), 67 Ohio App.3d 542. Accordingly, defendant's fifth assignment of error is overruled. Judgment affirmed. - 13 - 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, P.J., CONCURS; HARPER, J., DISSENTS WITH WRITTEN DISSENTING OPINION TO FOLLOW 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. .