COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61260 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ROBERT CARRAS : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 27, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-256174 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. THOMAS E. O'TOOLE, ESQ. Cuyahoga County Prosecutor 55 Public Square, Suite 1330 JAMES A. GUTIERREZ, ESQ. Cleveland, Ohio 44113 DAVID ZIMMERMAN, ESQ. Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: On May 29, 1990, appellant, Robert Carras, was indicted by the Cuyahoga County Grand Jury on 25 counts of drug trafficking, in violation of R.C. 2925.03(A)(4), and 25 counts of illegal processing of drug documents, in violation of R.C. 2925.23(B)(1). Appellant was reindicted and charged with 25 counts of drug trafficking, in violation of R.C. 2925.03(A)(6), and 25 counts of illegal processing of drug documents, in violation of R.C. 2925.23(B)(1). On August 9, 1990, the above two cases were dismissed and appellant was subsequently reindicted on 76 counts of drug laws, in violation of R.C. 2925.03(A)(6) and 76 counts of illegal processing of drug documents, in violation of R.C. 2925.23(B). On November 26, 1990, appellant was convicted by the jury on all 152 counts. The court sentenced appellant to a term of two years in prison to run concurrently on counts 1 through 76; four to fifteen years with three years actual incarceration on count 77; four to fifteen years with three years actual incarceration on counts 78 through 152 to be served concurrently with the other sentences. Appellant appeals as of right, and for the reasons set forth below, we affirm. II. Robert Carras, until his conviction in the within case, was a police officer in the City of Newburg Heights. He joined the police force in 1978. Mr. Carras suffers from a number of medical conditions dating back to 1970 when he was in high school. He had knee, hip and back injuries which necessitated - 3 - taking various narcotic medications. Mr. Carras' medication included Codeine, Dilaudid, Percodan and Percocet. Mr. Carras also suffered from a bullet wound to his right leg. The medications were prescribed in the late 1970's to early 1980's by Dr. Nowacek. In 1983, Dr. Nowacek transferred his practice to New York and Mr. Carras' treatment was referred to Dr. Kenneth Klak. Dr. Klak placed Mr. Carras on Tylenol with Codeine for a period of three to six months and later prescribed Percodan to be taken one every four hours. The Percodan prescriptions were continued even after Mr. Carras was diagnosed as being dependent on narcotics. The Percodan was discontinued and Mr. Carras was placed on Percocet by Dr. Klak after he was hospitalized in 1988 for a bleeding ulcer. Dr. Klak testified that in 1988 Mr. Carras was being issued approximately one prescription per week for Percocet. The rate of prescription slightly increased from 1984 to 1989. Dr. Klak testified that after each examination he usually gave the file to the patient to take back to the business office. He would write a prescription from a pad with a carbon paper underneath the first sheet, thereby producing a carbon copy of the prescription. The carbons are stapled to a red "drug card" (a piece of paper where all drug prescriptions are stapled together). Dr. Klak did not review the drug card on a periodic basis. Dr. Klak testified that the Cuyahoga County Sheriff's Department seized his medical records on April 20, 1990. He - 4 - later reviewed the files in the presence of the detectives and discovered that the drug card with the stapled carbons for the whole of 1989 and early 1990 were missing from the file. Dr. Klak testified that he did not write the prescriptions on State's Exhibits 1 through 76. He always used a ball point pen to write because a felt tip pen "would not make a carbon". Although State's Exhibits 1 through 11 were written in ball point pen, they were not written by Dr. Klak and 12 through 76 were in felt tip pen which is a pen he never uses. Dr. Klak knew only two pharmacies that Mr. Carras went to. Dr. Klak testified that he gave no more than four prescriptions of 100 unit dosages of Percocet a month. On cross-examination, he admitted that he wrote as many as three prescriptions a week at one time. Mr. William Winsley, of the Ohio State Board of Pharmacy, testified that a patient on 100 tablets of Percocet per week from 1984 to 1989 would have to increase the dosage to maintain the same effect because "the effectiveness of the drug probably would have worn off." Several members of Dr. Klak's staff testified that Mr. Carras was well known at the office. He knew some of the procedures regarding medical files. He always waited in the business office instead of the lobby. Some members of the staff socialize with him outside the office. The employees testified that Dr. Klak usually keeps patient's files in his office and brings them out to the front desk after the paperwork is finished. Dr. Klak usually takes the drug card and progress - 5 - sheet home, as a result, they are not normally in the file. They testified that Mr. Carras usually took his own file from the business office to the examining room and back to the file room. They never wrote a prescription to Mr. Carras and never noticed the doctor give a carbon to Mr. Carras. All of them testified that they witnessed Mr. Carras staple carbons to the drug card. They testified that the doctor does not use a felt tip pen because the doctor was messy and the pen did not go through a carbon. They further testified that the doctor was "sloppy" and would leave his prescription pad laying around the office. Dr. Phillip Bouffard, the director of the Lake County Regional Forensic Laboratory, testified as a handwriting expert. Dr. Bouffard analyzed the handwriting on the prescriptions and grouped them into three categories. The first group, which consisted of State's Exhibits 79 through 130, were written in ball point pen and consistent with Dr. Klak's handwriting. Dr. Bouffard presented to the jury a blow up of Dr. Klak's admitted written prescriptions and the alleged forged prescriptions to show the similarities and dissimilarities. Dr. Bouffard testified that he also used a video spectrum comparator which "is a device that uses a TV camera." It uses different wave lengths of light to determine "differences in ink or alterations." Dr. Bouffard testified that his examination revealed that five prescriptions written by Dr. Klak had dates altered in different ink from that used to write the original prescriptions. - 6 - Dr. Bouffard called the second group of prescriptions "freehand simulations" which occurs when someone copies another's handwriting. This writing is difficult to determine the author because the writer uses slow, deliberate strokes. While Dr. Bouffard could not determine who wrote the freehand prescriptions, he ruled out Dr. Klak as the writer. The third group of prescriptions were labelled by Dr. Bouffard as "tracings." He explained that tracings are done by shining a light through a writing and then placing a blank sheet of paper over the original and tracing over it. This is called "light box tracings." A second tracing is done by marking over the original writing itself or from a carbon. The tracings were done on State's Exhibit's 12 through 76. In some of the prescriptions, the tracings which dated back to 1988 had the dates changed. Dr. Bouffard stated that some of the tracings were done by the light box method. Dr. Bouffard in his issued report initially indicated that the trace overs were pencil or pen writings but later changed his opinion and concluded that "they would more likely be tracings over a carbon copy" and that due to the "line quality of the writing underneath," the carbon was an original carbon. Mr. Carras took the witness stand on his own behalf. He testified that all the prescriptions he got were obtained from Dr. Klak. Mr. Carras testified that he did not have any training in narcotic identification and prosecution. The Percocet he took - 7 - did not affect his judgment as a police officer. In a one week period in 1985, he took 500 Percocets which amounted to about 71 pills per day. He knew the layout of Dr. Klak's office; he knew where the drug card was and where it was kept. He took all the pills prescribed and did not know how much prescription he was taking per day. Mr. Carras further testified that he was the only one in control of the prescriptions. He was addicted to Percocet and he could not remember how much medication he took from the forged prescriptions. He cashed some of the prescriptions. He did not know how many prescriptions he got and does not know if taking 12,800 Percocets over a 15-month period was excessive. Eleven pharmacists from the four pharmacies that Mr. Carras used to fill his prescriptions testified. They identified the markings on various scripts as the prescriptions they filled. Nine of the pharmacists identified Mr. Carras and testified that he came to their stores very often. They testified that Mr. Carras received the prescriptions to the best of their knowledge. They testified that they were without the knowledge that Mr. Carras was going to four different pharmacies to fill his prescriptions. III. Appellant files the following assignments of error for review: "I. THE DEFENDANT IS ENTITLED TO CONDUCT A QUALITATIVE CHEMICAL ANALYSIS ON THE ALLEGED FORGED DOCUMENTS TO DETERMINE IF THE DOCUMENTS ARE TRACED OVER ORIGINALS, OR TRACED OVER CARBON COPIES. - 8 - "(A) The Test Requested Provides Information Material to the Guilt or Innocence of the Accused and Must be Permitted. "(B) The Prosecution's Failure to Permit The Accused To Test The Chemical Composition of the Writing Substances Denied the Accused the Right to Confront the Testimony of the State's Expert Witness. "II. THE TRIAL COURT'S REFUSAL TO PERMIT THE ACCUSED TO CROSS EXAMINE THE STATE'S WITNESSES DEPRIVED THE APPELLANT OF HIS SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM. "(A) The Trial Court Erred in Failing to Permit the Defense to Cross Exam [sic] Dr. Kenneth Klak on Prior Drug Law violations occurring in Dr. Klak's offices, and resulting in the Conviction of Dr. Klak's Associate, Dr. James Coan [sic][Cohen]. "(B) The Trial Court Erred in Failing to Permit the Defendant to Cross Examine Dr. Klak on His Knowledge that he was an Original Target of the Sheriff's Department Investigation. "(C) The Trial Court Erred in Failing to Permit the Defendant to Cross Examine Dr. Klak on the Extent of His Worker's Compensation Practice. "(D) The Trial Court Erred in Failing to Permit the Defendant to Re-Cross Doctor Klak on Recently Discovered Additional Instances of Prescriptions for 300 or more Percocet Per Week. "(E) The Trial Court Erred in Failing to Permit the Defense to Cross Examine the State's Witness William Winsley of the State Pharmacy Board Concerning the Effect of New Injuries on the Rate of Medication. "(F) The Trial Court Erred in Failing to Permit the Defense to Cross Examine William Winsley on a Written Recommend- - 9 - ation he Made to Detective Dale Smith, Indicating that Certain Pharmacist [sic] Should be Charged with Drug Law Violation Arising From Their Actions in the Present Case. "(G) The Trial Court Erred in Permitting Hearsay Testimony to Establish the Identity of the Individual Who Passed the Prescriptions in Issue. "(H) The Trial Court Erred in Permitting the Prosecution to Elicit Hearsay Testimony Regarding the 'Street Value' of Percocet. III. THE VERDICT AND JUDGMENT OF CONVICTION OF THE TRIAL COURT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW. IV. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL MADE AT THE CLOSE OF THE PROSECUTION'S CASE. V. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO UTILIZE LEADING QUESTIONS IN THE EXAMINATION OF ITS WITNESSES TO ELICIT INCOMPETENT TESTIMONY. VI. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON THE ELEMENT OF THE OFFENSE OF DRUG TRAFFICKING CONTAINED IN O.R.C. 2925.03(B). VII. OHIO REVISED CODE 2925.03(A)(6) IS UNCONSTI- TUTIONAL AS APPLIED IN THE CASE AT BAR. VIII. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON THE AFFIRMATIVE DEFENSE OF PERSONAL USE UNDER O.R.C. 2925.03(F). IX. THE CHARGES OF ILLEGAL PROCESSING OF DRUG DOCUMENTS (O.R.C. 2925.23) AND THE CHARGE OF AGGRAVATED DRUG TRAFFICKING (O.R.C. 2925.03(A)(6)) ARE ALLIED ALLIED [SIC] OFFENSES OF SIMILAR IMPORT." Appellant, in his first assignment of error, argues that his right to due process was denied by the trial court. Appellant argues that the trial court's failure to grant his motion, to - 10 - have an independent analysis of the ink sample from the prescription used as exhibits during trial, amounted to a denial of his right to "effective cross-examination of the state's document examiner." The record shows that at a hearing conducted on October 9, 1990, appellant's counsel, Mr. Thomas O'Toole, requested a continuance for a couple of weeks, seeking time to conduct ink analysis on the scripts. The trial court granted counsel's motion for a continuance and the case was continued for a pretrial to October 23, 1990. The next hearing as indicated by the transcript of record was on November 26, 1990. The following colloquy took place between the court, appellant's counsel and the state's counsel. "MR. O'TOOLE: Your Honor, with respect to the motion regarding discovery, compelled discovery, regarding taking ink samples from the prescriptions to determine whether it was ink, pencil or carbon underneath, it is our understanding that that motion was also denied. "I would like that on the record. "THE COURT: Mr. Gutierrez. "MR. GUTIERREZ: Your Honor, we discussed this one motion about a month ago. "THE COURT: Was that handled on the "MR. GUTIERREZ: Yes, it was. "THE COURT: All right. "MR. GUTIERREZ: Yes, it was handled on the record. "THE COURT: All right. - 11 - "MR. GUTIERREZ: The State's position, your Honor, regarding that is that an ink test would not be dispositive of the issues here, nor do we know if the ink test is in fact accepted in the community of handwriting or forensic analysis. "So, your Honor, we would just request that you abide by your prior ruling and overrule the motion. "MR. O'TOOLE: Your Honor, the test would be a qualitative and chemical analysis of the content of the ink samples, and it would be a dispositive type finding. "It would be able to tell exactly what the chemical composition is. "Also between the experts, there has been a dispute over whether it was carbon or pencil or ink underneath, and that would be a material issue in this case. "THE COURT: Well, if the Court had ruled prior -- I don't have any notes on it. "Obviously that's on the record as for why the Court made that ruling. "All right. With that in mind we will wait for the jury." (Emphasis added.) A careful review of the record yields no evidence of any hearing on a motion by appellant's counsel for time to conduct a test of the prescriptions and determine the chemical composition of the underwriting. The duty of providing a transcript of proceedings for appellate review rests with appellant. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199. This burden is placed on the appellant because he must demonstrate claimed error by reference to matters contained in, or excluded from the record. Id. See also State v. Williams (Feb. 21, 1991), Cuyahoga App. No. 57988, unreported. App. R. 9(C) provides the - 12 - procedure which may be followed absent a transcript. See App. R. 9(C). In the within case, there is no evidence that appellant made any attempt to comply with App. R. 9(C). Therefore, in the absence of some record of appellant's hearing on his motion, we must presume regularity. See (1988), 38 Ohio St.3d 305, 314; State v. Bak (Mar. 1, 1990), Cuyahoga App. No. 56619, unreported, p.4; State v. Winborn (Sept. 6, 1990), Cuyahoga App. No. 57415, unreported. See also State v. Williams, supra. Appellant's failure to provide this court with the transcript of proceedings dealing with his assigned error, precludes us from addressing appellant's first assignment of error. Accordingly, appellant's first assignment of error is not well taken. IV. Appellant argues in his second assignment of error that the trial court erred by denying him the right to cross-examine the state's witness, Dr. Klak, "on prior drug law violations occurring in Dr. Klak's offices, which resulted in the conviction of his associate." Appellant argues that the trial court did not permit him to cross-examine Dr. Klak concerning the conviction of an associate of his, Dr. James Cohen, who shared the same office building with Dr. Klak and who was indicted for drug trafficking and illegal processing of drug documents. The following colloquy took place between appellant's counsel and Dr. Klak: "Q. Oh. Do you have an associate in your office by the name of Dr. Cohen? - 13 - "A. Yes. "Q. Where is he currently? "A. He is no longer in practice. "Q. Do you know what happened to him? "A. He -- "MR. GUTIERREZ: OBJECTION. "THE COURT: Sidebar. - - - "(Thereupon, a discussion was had off the record between Court and Counsel outside the hearing of the Jury at the sidebar.) the Jury at the sidebar.) "THE COURT: Sustained. "MR. GUTIERREZ: THANK YOU, YOUR HONOR. "BY MR. O'TOOLE: "Q. During the course of your practice, was there anything that gave you any indication that Mr. Carras was becoming addicted to the drugs you were prescribing? "A. No." The cross-examination of Dr. Klak continues: "Q. Would you still go through this hallway up through here to get to those exam rooms? "A. Yes. "Q. What is the old office? "A. This building was built for two separate offices, two separate physician type companies, and this used to be Dr. Cohen's business office. "Q. Dr. who? "A. Dr. Cohen's business office. - 14 - "Q. And there was Dr. Sevastos and -- "A. Right. "Q. After Dr. Cohen went away, then this became vacant? "A. Right. "Q. Now, what is Dr. Cohen's office used for now? "A. Basically storage. "Q. Storage of what? "A. His old ledger cards. "Q. You still keep his stuff even through [sic] he is not going to be coming back for sometime? "A. Yes. "Q. He probably never will practice again? "A. Well -- "MR. GUTIERREZ: Objection. "MR. ZIMMERMAN: Objection. "THE COURT: Sustained. "MR. O'TOOLE: "Q. Now, that's basically -- the old office is used for the storage of Dr. Cohen's old stuff? "A. Yes." Ohio Evid. R. 401 reads as follows: "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Brown v. Cleveland (1981), 66 Ohio St.2d 93, 420 N.E.2d 103. In Renfro v. Black (1990), 52 Ohio St.3d 27, 31, the Ohio Supreme - 15 - Court held that "The issue of whether testimony or evidence is relevant or irrelevant, confusing or misleading, is best decided by the trial judge, who is in a significantly better position to analyze the impact of the evidence on the jury." See also Columbus v. Taylor (1988), 39 Ohio St.3d 162, 164, 529 N.E.2d 1382, 1385; Calderon v. Sharkey (1982), 70 Ohio St.2d 218, 24 O.O.322, 436 N.E.2d 1008. In the instant case, appellant failed to take exception to the trial court's denial of his line of questioning and place on the record the relevancy of this line of questioning to the trial at hand. While the opportunity to cross-examine a witness is a major component of the right to confront one's accusers, Pointer v. Texas (1965), 380 U.S. 400; State v. Phillips (1971), 27 Ohio St.2d 294, it is not without its limits. Appellant's failure to establish the relevancy of his line of questioning at the trial level, precludes him from raising it on appeal. In view of the record before us, and for the same reasons stated supra, we find no error in the trial court's refusal to permit appellant to cross-examine Dr. Klak on the indictment of Dr. Cohen; on his knowledge of being the original target of the Sheriff's department investigation; on the extent of his worker's compensation practice; on the discovery of additional carbon copies; and also on the effect of new injuries on the rate of medication. Appellant further argues that the trial court erred in failing to permit him to cross-examine the state's witness, - 16 - William Winsley, on the possibility that the pharmacists could be charged with drug law violations arising from their conduct in the present case. This argument has no merit. Appellant's counsel asked the following questions to Mr. Winsley: "Q. You are familiar with the amounts that were being passed by the various drugstores here, are you not? "A. Yes. "Q. And was there any potential that any of these pharmacies or pharmacists could face action for the amounts that were being prescribed? "MR. GUTIERREZ: Objection. "MR. ZIMMERMAN: Objection. "Q. Or being filled by them? "THE COURT: Sustained. "MR. O'TOOLE: Could we have a sidebar? "THE COURT: You may. "- - - "(Thereupon, a discussion was had off the record between Court and Counsel at the sidebar outside the hearing of the jury.) "- - - "THE COURT: Sustained. "MR. O'TOOLE: I have no further questions, your Honor." Appellant argues on appeal that the purpose of the question to Mr. Winsley was to show that "the pharmacists who testified previously were subject to liability either criminally or administratively for their actions in filling the prescriptions," thereby establishing "possible prejudice or self-interest of the - 17 - pharmacist [sic] who had previously testified." Appellant's attempt to impeach the pharmacists through Mr. Winsley's testimony would have been proper if he had already inquired of the pharmacists themselves directly of their knowledge of this fact. Impeaching them through Mr. Winsley without first eliciting their answers to the same question is an improper exercise of impeachment. The trial court, therefore, acted properly in sustaining the state's objection. Appellant further argues that the trial court erred by allowing hearsay testimony to establish his identity. Appellant's argument emanates from the following statements made by pharmacists, Michael Sreshta and Dave Gable, respectively: "I think I was told by the staff who were working with me that this was a legitimate person." "I had checked with a girl who worked with me." Mr. Sreshta further testified: "They knew Bob Carras. They told me, as I recollect now, that he was a policeman ***." Mr. Gable's testimony was a direct act performed by him and cannot be treated as a hearsay statement. It is no different from a witness being asked on direct examination "and what did you do next, who answers, I checked with a girl." However, it is not so for Mr. Sreshta's testimony -- which is hearsay and should not have been admitted. We reject the state's counter argument that the witness was testifying to a present sense impression. A recollection of past events cannot be a report of the immediate sense impression. See Houston Oxygen Inc. v. Davis (1942), 139 Tex. 1, 161 S.W.2d 474. In light of the fact that the majority - 18 - of the pharmacists testified that they knew appellant personally, the error in admitting the hearsay statements was harmless. Appellant also testified that he presented the scripts and received the prescriptions personally. Appellant further argues that the trial court erred in permitting a prosecution witness to testify to a hearsay statement concerning a street value of Percocet. The prosecution witness, Mr. Winsley, was asked: "Are you aware of what the value on the street is for a tablet of Percocet?" Answer: "I am not familiar at the present time. When I took the job two years ago, I was told it was between ten and twenty dollars on the street." We agree with the state that the form of the question was proper and that the answer was improper hearsay. However, appellant neither objected nor requested that the answer be stricken from the record, therefore, we decline to address it. See State v. Williams (1977), 51 Ohio St.2d 112; State v. Coleman (1988), 37 Ohio St.3d 286, 294; State v. Williford (1990), 49 Ohio St.3d 247, 253. Accordingly, appellant's second assignment of error is overruled. IV. Appellant, in his third assignment of error, argues that his conviction was against the manifest weight of the evidence. Appellant, citing State v. Kulig (1974), 37 Ohio St.2d 157, contends that circumstantial evidence was improperly used to convict him because the evidence was not irreconcilable with any reasonable theory of his innocence. Appellant further argues - 19 - that the jury should not have believed Dr. Klak, whose only motive was to avoid a malpractice lawsuit. Appellant faulted the jury for believing Dr. Klak's testimony that he did not write some of the prescriptions in question. Appellant's argument has no merit. Firstly, appellant's citation and reliance on the Kulig decision is inconsistent with the law of circumstantial evidence as it stands today. The Ohio Supreme Court in State v. Jenks (1991), 61 Ohio St.3d 259, in overruling Kulig, supra, held that: "Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Therefore, where the jury is properly and adequately instructed as to the standards for reasonable doubt a special instruction as to circumstantial evidence is not required. (Hollard v. United States [1954], 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150, followed; State v. Kulig [1974], 37 Ohio St.2d 157, 66 O.O.2d 351, 309 N.E.2d 897, overruled.)" This court held in State v. Knight (Nov. 21, 1991), Cuyahoga App. No. 59080, unreported, that: "The holding in Jenks stands for the proposition that the issue of circumstantial evidence is viewed not in light of whether the circumstantial evidence is irreconcilable with any reasonable theory of defendant's innocence, but whether the trial court properly instructed the jury on the standards for reasonable doubt." In the instant case, since the trial court instructed the jury properly on the standards for reasonable doubt, the testimony of witnesses regarding the facts and circumstances are left to the - 20 - jury to reconcile and no further instruction is authorized by law nor is any necessary for a proper jury verdict. Secondly, appellant admitted that he cashed some of the prescriptions that were alleged to be forged. He admitted to being addicted to Percocet, and to his familiarity with some of the office procedures. He had the only access to the legitimate prescriptions written by Dr. Klak. The jury heard appellant's testimony as well as Dr. Klak's testimony including various witnesses who testified. It is a general rule of law in Ohio that a reviewing court shall not reverse a verdict as being contrary to the weight of the evidence where competent, credible evidence supports the fact finder's verdict. State v. Eley (1978), 56 Ohio St.2d 169, syllabus. The primary determination of the credibility of witnesses and the weight of the evidence are matters for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. We shall not reverse unless the jury has gone out of its way and the record shows manifest injustice. See State v. Mattison (1985), 23 Ohio App.3d 10, 14. In the instant case, we deem the evidence in the record sufficient for us to affirmatively state that it is of such a character that the jury had before it sufficient evidence to convict appellant. Appellant's third assignment of error is overruled. V. Appellant argues in his fourth assignment of error that the trial court erred in denying his motion for judgment of acquittal. Appellant attempted to support his argument by - 21 - contending that it was not affirmatively proved that he was present each time the prescriptions were filled. In State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus, the Ohio Supreme Court held that a trial court shall not, pursuant to Crim. R. 29(A), order an entry of judgment of acquittal if 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. We held in appellant's third assignment of error that the evidence was sufficient for a conviction and our opinion has not changed. The state argues that appellant waived "any error by taking the stand." This is an incorrect statement of the law of Crim. R. 29(A), motion for acquittal. A defendant waives his right to raise the issue of his Crim. R. 29(A) motion for acquittal on appeal, not because he takes the stand, but because he failed to renew his motion at the close of all evidence. See State v. Whitmeyer (1984), 20 Ohio App.3d 279; State v. Parkes (1982), 7 Ohio App.3d 276; see also U.S. v. Douglas (10th Cir. 1982), 668 F.2d 459. In the instant case, since appellant renewed his motion at the close of all the evidence, his right to challenge the trial court's denial of his motion was properly preserved for appellate review. However, for the reasons stated supra, appellant's fourth assignment of error is overruled. VI. Appellant, in his fifth assignment of error, argues that the trial court erred in permitting the state to lead its witnesses - 22 - during examination. Appellant contends that such leading questions resulted in incompetent testimony. Specifically, appellant challenges the trial court's allowance of the following examination of John Hackman. "Q. Again, to your knowledge, did Bob Carras receive these one hundred unit dosages of the Percocet on this date? "MR. O'TOOLE: Objection. Competency. "THE COURT: Objection. "A. Yes. "Q. Okay. "Do you have any reason to believe that anybody else would have received these drugs from your pharmacy with Bob Carras' name on it? "A. No." On cross-examination, appellant's counsel asked Mr. Hackman the following questions: "Q. Now, on these particular dates, do you specifically recall Mr. Carras coming in and let's start with No. 5. "On 9/26/89, did Robert Carras come in with this prescription? "A. I believe he did, yes. "Q. Do you specifically recall him coming in? "A. That's a hard question. I have seen so many customers everyday that I work there, but I do know that Bob generally brought the prescriptions in himself. "Q. You said that Bob generally brought the prescriptions in? "A. Himself, that is correct. - 23 - "Q. On some occasions somebody other than Bob brought the prescriptions in? "A. Not to my knowledge. "Q. When you say Bob generally did, what happened when he generally didn't? "MR. GUTIERREZ: Objection. "THE COURT: Overruled. "MR. GUTIERREZ: Asked and answered. "THE COURT: Overruled. "A. You asked me on a specific date. I said I couldn't remember on a specific date. "I know that Bob generally brought his prescriptions in himself. "Q. I am referring to -- I am not referring to that particular date. "You are not saying always but generally? "A. To my knowledge he always brought them in himself. "Q. Did you ever see anyone else bring one in? "A. No." (Emphasis added.) Appellant's counsel's questions are no different in form and in meaning than those asked by the state. We do not see the questions as being neither improper nor prejudicial. The questions were asked to make certain that there was no mistaken identity as to who received the prescriptions. A trial court has broad discretion in the admission and exclusion of evidence and a reviewing court shall not reverse a trial court's judgment for failure to admit or exclude evidence unless the trial court has clearly abused its discretion and the complaining party has suffered material prejudice. Columbus v. - 24 - Taylor (1988), 39 Ohio St.3d 162, 164. Accordingly, we would not reverse the trial court's judgment unless the trial court acted unreasonably, arbitrarily, or unconscionably. Id., at 165. Accordingly, appellant's fifth assignment of error is overruled. VII. Appellant contends in his sixth assignment of error that the trial court failed to instruct the jury on the element of the offense of drug trafficking pursuant to R.C. 2925.03(B). R.C. 2925.03(A)(6), upon which appellant was indicted, reads as follows: "(A) No person shall knowingly do any of the following: "* * * "(6) Possess a controlled substance in an amount equal to or exceeding three times the bulk amount, but in an amount less than one hundred times that amount;" R.C. 2925.03(B) reads as follows: "(B) This section does not apply to the following: "(1) Manufacturers, practitioners, pharmacists, owners of pharmacies, and other persons whose conduct is in accordance with Chapters 3719., 4715., 4731., and 4741. of the Revised Code;" Appellant fails to understand that R.C. 2925.03(B) is not an element of the offense of drug trafficking that should be proved by the state. It is, however, a defense or an exception that must be affirmatively shown by a defendant if he falls into one of the categories enumerated. Appellant argues that R.C. 3719.09(C) applies to him. R.C. 3719.09(C) reads as follows: - 25 - "Possession or control of controlled substances is authorized in the following instances: "* * * "(C) Possession by any person of any controlled substance obtained pursuant to a prescription issued by a practitioner, which drug is in the original container in which it was dispensed to such person." Appellant contends that R.C. 3719.09(C) is applicable to him because "the prosecution had previously established that Dr. Klak was a practitioner." Appellant's argument has no merit. Appellant was indicted and convicted for forging prescriptions. Dr. Klak testified that he did not write the prescriptions appellant was accused of forging. In order for an R.C. 3719.09(C) defense to be available to defendant he must prove that the prescriptions were written by a practitioner. Dr. Klak testified that the prescriptions in question were not written by him, and appellant did not put forth any evidence to contradict Dr. Klak's testimony. Since the prescriptions in question were unauthorized by a practitioner, an R.C. 3719.09(C) defense is unavailable to appellant. Appellant further argues that the court's charge to the jury on illegal processing of drug documents were erroneous because it was confusing to the jury and also because the court did not define "false" to the jury. The court's charge reads as follows: "Now, the first count of the indictment charge deals with Revised code Section 2925.23. In the first count of the indictment, the defendant, Robert Carras is charged with illegally possessing a drug, and before you can find the defendant guilty, you must find beyond a reasonable doubt that on or about the 12th day of - 26 - September, 1989, and in Cuyahoga County, Ohio, the defendant intentionally made or uttered a false or forged prescription for Percocet, a Schedule II drug." (Emphasis added.) A reading of the jury instruction as stated above supports appellant's contention of possible confusion, however, the court recorder in a sworn affidavit, explained the error as an omission made during transcribing and not as charged by the court. The recorder's affidavit reads as follows: "AFFIDAVIT "State of Ohio, ) "County of Cuyahoga. ) "In re: State of Ohio versus Robert Carras Criminal Case No. 256174 "Upon the request of Assistant County Prosecutor James Gutierrez, I was requested to check the jury charge portion of the transcript to see whether my notes reflected illegally possessing a 'drug' or 'drug document.' Upon further review of my notes, it was discovered that the jury charge should reflect 'drug document,' not just the word 'drug.' _____________________________ Robert A. Cangemi, 9-25-91 Official Court Report Court of Common Pleas Cuyahoga County Karla K. Hanna Notary Public - State of Ohio My Commission Expires: 7-8-93" The court recorder's correction is consistent with the latter part of the court's instruction which stipulated what must be done to render the document illegal; it reads in part "*** the defendant intentionally made or uttered a false or forged prescription for Percocet, a schedule II drug." (Emphasis - 27 - added.) In the absence of some record to dispute the court recorder's affidavit, we must presume the error as an innocent omission made by the court recorder and not an error of the trial court; the jury instruction, therefore, is proper. Appellant further contends that the trial court erred by not defining "false." Appellant was charged with possession of drugs and forging prescriptions. The court instructed the jury on utter, possession, and forgery, and we find that the court's instruction was sufficient to enable the jury to determine appellant's guilt or innocence upon the offenses charged. While the court's instruction improperly implied that one could be indicted pursuant to R.C. 2925.23(B)(3) for uttering a false document, we find this error harmless since appellant was not charged with possessing a false document -- or uttering one. Appellant's sixth assignment of error is overruled. VIII. Appellant argues in his seventh assignment of error that R.C. 2925.03(A)(6) is unconstitutional as applied to him. We disagree. Appellant argues that the statute as applied created an irrebuttable presumption of trafficking on drugs just because he possessed an amount in excess of the bulk. Appellant argues that the jury was mandatorily required to find the presumed fact of trafficking when he was denied the right of claiming the defense of personal use. This court, in holding R.C. 4729.51(C) - 28 - 1/ unconstitutional in State v. Swanson (1989), 52 Ohio App.3d 78, stated that a statutory presumption that a proof of one element of an offense automatically proves a violation of another element is invalid unless a rational connection exists between the proven fact and the presumed fact. See State v. Dempsey (1970), 22 Ohio St.2d 219, 222, 51 O.O.2d 306, 308, 259 N.E.2d 745, 748. See also United States v. Gainet (1965), 380 U.S. 63; Tot v. United States (1943), 319 U.S. 463, 467. In the within case, the absence of such presumption distinguishes this case from the Swanson case. The state is required to prove that appellant knowingly possessed a controlled substance equal to or in excess of three times the bulk amount, and it did. See R.C. 2925.03(A)(6). The jury was not required to presume knowledge by the mere fact that appellant possessed a controlled substance, the state is required to prove knowledge as well as possession. The Ohio Supreme Court held in State v. Davis (1985), 16 Ohio St. 3d 34, that: "R.C. 2925.03(F) specifically refers to possession of a bulk amount of a controlled substance; nowhere in the statute is there any reference to possession of three times the bulk amount. 'When the wording of a statute is clear and unambiguous on its face, judicial interpretation is not required; rather, the court must give effect to the words used. ***' Dougherty v. Torrence (1982), 2 Ohio St.3d 69, 70. '*** In ascertaining the legislative intent of a statute, "It is the duty of this court to give effect to the words used [in a statute], not to delete words used or to insert words not used." (Emphasis added.)' Bernardini 1/ In Swanson appellant was convicted pursuant to R.C. 4729.51(C) for selling drugs by the mere fact that he was in possession of the drugs. - 29 - v. Bd. of Edn. (1979), 58 Ohio St.2d 1, 4 [12 O.O.3d 1]. "Nevertheless, the court of appeals herein concluded that the General Assembly did not intend to restrict the availability of the personal use defense to the exclusion of those charged with three times bulk possession offenses. R.C. 2925.01(E)(3) is cited, which defines 'bulk amount' as: 'An amount equal to or exceeding two hundred grams of marihuana ***.' (Emphasis added.) "By defining bulk amount in the disjunctive, this reasoning holds, the legislature did not mean for bulk amount to be a static figure. Thus, it is argued, 'bulk amount' as used in R.C. 2925.03(F) means any amount over two hundred grams. "This reasoning has no merit. The General Assembly has specifically created a distinction between bulk amount and three times the bulk amount. R.C. 2925.03(A)(4) and (A)(6). Its use of the term 'bulk amount' in R.C. 2925.03(F) refers back to the definition set forth in R.C. 2925.01(E)(3). Had it been otherwise, R.C. 2925.03(F) would have read in pertinent part: "'*** [The defense may be asserted by those charged] under this section for possessing a bulk amount [or any greater amount] of a controlled substance ***.' (Emphasis and bracketed material added.) "The statute does not include the words 'or greater,' however. By not permitting those charged with possession of three times the bulk amount to assert the personal use defense, the legislature has created a presumption that such possession cannot be for personal use. In the instant case, this presumption is reasonable, in view of the fact that three times the bulk amount of marijuana is six hundred grams or greater. The legislature is entitled to prohibit those charged with possession of six hundred grams or greater from using the defense. R.C. 2925.03 is aimed at the prevention of trafficking in controlled substances; it is reasonable to presume that possession of six hundred grams of marijuana will lead to eventual trafficking." In light of Davis, supra, we hold that R.C. 2925.03(A)(6) is constitutional as applied in the within case. See also State v. - 30 - Calhoun (1981), 2 Ohio App. 3d 472, 2 OBR 597, 442 N.E.2d 1306. Accordingly, appellant's seventh assignment of error is not well taken and is overruled. IX. Appellant, in his eighth assignment of error, charges that the trial court erred by failing to instruct the jury on the affirmative defense of personal use. R.C. 2925.03(F) reads as follows: "(F) It shall be an affirmative defense, as pro- vided in section 2901.05 of the Revised Code, to a charge under this section for possessing a bulk amount of a controlled substance or for cultivating marihuana that the substance which gave rise to the charge is in such amount, in such form, or is prepared, compounded, or mixed with substances which are not controlled substances in such a manner, or is possessed or cultivated in any other circumstances whatsoever as to indicate that the substance was solely for personal use." Appellant's eighth assignment of error and argument is not well taken. See our holding in appellant's seventh assignment of error, supra. X. Appellant contends in his ninth assignment of error that the offense of illegal processing of drug documents, R.C. 2925.23, and the offense of drug trafficking, R.C. 2925.03(A)(6), are allied offenses of similar import. We disagree. It is a settled law in Ohio that two crimes are not allied offenses of similar import if each crime requires proof of a fact not required by the other. - 31 - This court held in State v. Depompei (Feb. 16, 1984), Cuyahoga App. No. 46838, unreported, that: "The offense of trafficking is not allied with the offense of illegally processing drug documents. Offenses are not allied if each crime requires proof of a fact not required by the other. Blockburger v. United States (1932), 284 U.S. 299; 76 Law Ed. 306. The crime of trafficking does not require proof of writing a false prescription, as does the crime of illegally processing drug documents. That crime (illegal processing) does not require proof of providing items of value to another person so that this other person can sell bulk amounts of drugs, as does trafficking." In the instant case, appellant has failed to put forth an argument or case law persuasive enough to compel us to overrule our decision in Depompei, supra. Accordingly, appellant's ninth assignment of error is overruled. Judgment affirmed. - 32 - 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. DAVID T. MATIA, C.J., and JAMES D. SWEENEY, J., CONCUR. SARA J. HARPER 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. .