COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61336 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : GAYLE MORTON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT SEPTEMBER 3, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-247332 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES THOMAS S. HUDSON Cuyahoga County Prosecutor 1700 Terminal Tower 8th floor Justice Center Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Gayle Morton defendant-appellant, hereinafter Appellant timely appeals her convictions for three drug related offenses, resulting from a jury trial. Having reviewed the record and legal arguments of the parties, we affirm. The facts of this case are as follows: The first and third counts of the indictment were for the sale or offer for sale of cocaine in an amount one to three times the bulk amount of cocaine in violation of R.C. 2925.03. The second and fourth counts were for permitting a motor vehicle to be used for the commission of a felony drug abuse offense in violation of R.C. 2925.13. The fifth and sixth counts both charged her with possession of criminal tools in violation of R.C. 2923.24. After entering pleas of not guilty, Appellant's case proceeded to a jury trial on February 5, 1991. At the close of the state's case defendant-appellee, hereinafter Appellee and in response to Appellant's motion for acquittal, the trial court dismissed the fourth, fifth, and sixth counts against Appellant; and on February 6, 1991, the jury found Appellant guilty of the remaining charges. Appellant was sentenced to three to fifteen years for the merged counts of one and three, and six months in county jail for the second count which was suspended. In its case-in-chief, Appellee presented three witnesses. The first witness was Detective Robert DeSimone, a Parma Narcotics Detective and a veteran of that department for eleven -3- years. He testified that in 1989 he started his investigation of Appellant for drug trafficking activities. In connection with this investigation, he testified that he worked with an informant. On November 6, 1989, Detective DeSimone testified that his informant made a phone call, monitored by him to Appellant at a North Olmsted residence. During this conversation between the informant and Appellant, a transaction was arranged. The transaction, according to DeSimone, was to take place at the intersection of Lorain and Stearns and involved Appellant selling an ounce of cocaine to DeSimone for One Thousand Six Hundred Fifty Dollars ($1,650.00). The informant and Detective DeSimone arrived at the inter- section of Lorain and Stearns at approximately 9:00 P.M. on November 6, 1989. According to DeSimone's testimony, he was wearing a transmitter at the time, which enabled his assisting police officers to monitor what was taking place. Detective DeSimone testified that the meeting was to take place in a parking lot and that Appellant was to either have the cocaine with her or have made arrangements with a supplier to drop it off. DeSimone testified that he was to act as the buyer of the drugs and to use monies that were photocopied for purposes of tracing. Detective DeSimone testified that Appellant arrived about five minutes after he and the informant with another female and a small child in the car. According to DeSimone, Appellant told him that she had not received the cocaine. DeSimone and the -4- informant waited approximately one half hour for the supplier to arrive, after which, Appellant and the two people with her left to get some dinner. DeSimone testified that Appellant made a few more attempts to contact her supplier after she returned from dinner; however, she was not successful. Appellant also told DeSimone, according to his testimony, that her supplier would give him a Twenty-Five Dollar ($25.00) discount on the cocaine for being late. After being advised to call Appellant at her residence after 11:00 P.M., everyone left the parking lot. DeSimone testified that when he finally called after about 11:00 P.M., he was told that Appellant had gone to bed. The tape recording made of this encounter, recorded by the transmitter which was worn by DeSimone, was played for the jury after an explanation of its contents was given by him. DeSimone's explanation of the tape was that it was an offer to sell cocaine. DeSimone also admitted during his testimony that the majority of the tape contained relatively innocuous conversation. DeSimone did testify though that the conversation with regard to the amount of money necessary to purchase the cocaine as well as the discount offered on the purchase were audible on the tape. After the testimony of Detective DeSimone, Appellee called as its next witness Detective Marty Compton, who also participated in the investigation of Appellant. Detective Compton testified that he had been a Parma police officer for six years. He was also present and monitored the November 6, 1989 -5- telephone conversation between Appellant and the informant. According to Compton, Appellant agreed to sell one ounce of cocaine for One Thousand Six Hundred Fifty Dollars ($1,650.00). It was also Compton's testimony that during his investigation he developed a recognition of Appellant's voice, and it was indeed Appellant's voice that agreed to sell the ounce of cocaine for the One Thousand Six Hundred Fifty Dollars ($1,650.00). Detective Compton testified on the morning of November 22, 1989, he monitored and recorded another call between the informant and Appellant. According to Compton's testimony, Appellant stated that she would have no problem getting the cocaine, but that the informant would have to call back later to confirm the fact that she did have it. Detective Compton was clear in his testimony that an ounce of cocaine for One Thousand Six Hundred Fifty Dollars ($1,650.00) was the amount and price discussed. Compton further testified that approximately three hours later a call was placed to Appellant to see if she had obtained the cocaine. Appellant confirmed that she had the cocaine. During this conversation, arrangements were made for the informant to pick Appellant up at the same intersection and parking lot used for the November 6, 1989 meeting. Appellant and the informant would then ride together to meet the informant's friend, who was Detective Compton, at the Ambassador Bowling Lanes in Parma, Ohio where the transaction would take place. The tape recording of this conversation was also played for the jury. -6- Detective Compton testified that he arrived at the parking lot first and was the only car in the lot. He waited about fifteen to twenty minutes before Appellant and the informant arrived. It was also Compton's testimony that he was wearing a body transmitter, and he and his fellow officers were planning for the transaction to be a buy-bust situation, which meant that as soon as the cocaine was sold, Appellant would be arrested. Compton testified that Appellant and the informant arrived; Appellant was a passenger and the informant was driving. Compton walked over to the informant's car and talked with Appellant. He testified that he was standing directly outside of the passenger's door of the car and the window was open. Compton testified that the informant opened the glove compartment. He also testified that Appellant had mentioned in a prior conversation that she would not actually hand the cocaine to him. Thus, the informant removed the bag of cocaine and placed it on Appellant's leg. According to Compton, Appellant indicated that in the future he could deal directly with her and assured him that the cocaine was of good quality because she had a new supplier. After this, Compton counted One Thousand Six Hundred Fifty Dollars ($1,650.00) and gave it to Appellant. Compton reached in and took the cocaine off Appellant's leg and gave Appellant the money. He then made a reference to whether the cocaine was good, which was the signal for the other officers to move in and make the arrest. -7- Compton further testified that when the officers moved in Appellant threw the money in the direction of the driver/informant. Compton then identified a fifty dollar bill as being a part of the transaction money and the bag of cocaine. He also identified all three of the voices on the tape recording of the telephone conversation as being his, Appellant's, and the informant's. Lastly, Compton testified that the phone number given by Appellant at her arraignment was the same phone number used to arrange both transactions. The third and final witness presented by Appellee was Detective Wilfred Kleppel, who was responsible for the monitoring and recording of the November 6, 1989 and November 22, 1989 meetings. The essence of his testimony was that normally there is no reference to "drugs" or "cocaine" in conversations that involve drug transactions. Kleppel confirmed that he did not witness Appellant place cocaine in the car or hand it to Detective Compton. After the overruling of Appellant's motion for acquittal, Appellant presented one witness, Cheryl Schultz, who was the informant working on the investigation with the Parma Police Department. Schultz testified that she drove Appellant to the Ambassador Lanes parking lot on November 22, 1989. Schultz indicated that she did reach into the glove compartment and remove the cocaine, and Appellant never touched it during the transaction. She did place it on Appellant's leg and witness Appellant take the money from Detective Compton. -8- During her cross-examination, Schultz testified that the first meeting of November 6, 1989 was arranged for an ounce of cocaine to be purchased from Appellant. Schultz testified that the meeting in North Olmsted was arranged during a telephone conversation that she had with Appellant. Schultz also testified that Appellant contacted her, with respect to the November 22, 1989 meeting, and indicated that she could get an ounce of cocaine and the price would be One Thousand Six Hundred Fifty Dollars ($1,650.00). She further testified that after she picked Appellant up, Appellant, while riding in the car to the Ambassador Lanes, gave Schultz the cocaine which she placed in the glove compartment of the car. After Schultz completed her testimony, Appellant renewed her motion for acquittal which was denied by the trial court. The case was then given to the jury and a verdict of guilty was returned. In support of Appellant's appeal, two assignments of error are asserted. Since they are interrelated, they will be addressed together. They state: THE TRIAL COURT ERRED IN DENYING APPELLANT'S RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL BECAUSE THE EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR SALE OR OFFER TO SELL A CONTROLLED SUBSTANCE, OR USE OF A MOTOR VEHICLE FOR PURPOSES OF TRAFFICKING IN DRUGS. THE CONVICTIONS OF APPELLANT WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The standard for evaluation of a motion for acquittal pursuant to Crim.R. 29 is enunciated in the longstanding case of -9- State v. Bridgeman (1978), 55 Ohio St.2d 261. Pursuant to Crim.R. 29(A), a court shall not 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. Id. at Syllabus. Additionally, the reviewing court construes the evidence in a light most favorable to the state. State v. Wolfe (1988), 51 Ohio App.3d 215. Accordingly, the issue becomes in the instant appeal whether when viewing the evidence in a light most favorable to Appellee reasonable minds could reach different conclusions as to whether each material element of the crimes with which Appellant was charged had been proven beyond a reasonable doubt. Appellant argues that Appellee failed to present sufficient evidence upon which reasonable minds could reach different conclusions. Appellant asserts that the first meeting contained relatively innocuous conversation and no drugs were exchanged. Consequently, according to Appellant's reasoning, there was no offer to sell a controlled substance. The secondary aspect of Appellant's position is that at the second meeting the informant controlled the drugs and Appellant was merely present. These arguments asserted by Appellant relating to the charges of sale or offer to sell a controlled substance. The argument asserted by Appellant, pertaining to the use of a motor vehicle for purposes of trafficking in drugs, alleged -10- there was one incident when she controlled the vehicle and no drugs were sold, which was the November 6, 1989 meeting. After the motion for acquittal at the close of Appellee's case, the trial court dismissed three counts and allowed three to remain. The first of the remaining counts was the charge of offering to sell a controlled substance in violation of R.c. 2925.03(A)(5) on November 6, 1989. The second remaining count also pertained to November 6, 1989. This charge was for permitting a motor vehicle to be used for the commission of a felony drug abuse offense, the sale of cocaine in violation of R.C. 2925.13. The last count remaining, after the first motion for acquittal, was for the actual sale of the ounce of cocaine that occurred on November 22, 1989 in violation of R.C. 2925.03. With respect to whether reasonable minds could reach different conclusions about whether Appellee proved the essential elements of offering to sell a controlled substance on November 6, 1989, in violation of R.C. 2925.03(A), this court must conclude that reasonable minds could reach different conclusions in this regard. Both Detectives DeSimone and Compton offered sufficient testimony to substantiate a determination that reasonable minds could reach different conclusions. Detective DeSimone testified that a call was placed on November 6, 1989, to a number verified as being Appellant's residence. The phone call was monitored from the office of the Narcotics Unit of the Parma Police Department and was placed by the informant. As a result of the -11- phone conversation between the informant and a voice conclusively identified by three witnesses as Appellant's, a drug transaction was arranged for one ounce of cocaine to be sold at One Thousand Six Hundred Fifty Dollars ($1,650.00). The place was a parking lot at Stearns and Lorain. In anticipation of the purchase, Detective DeSimone took the money with him on the evening of November 6, 1989. Upon her arrival, according to the testimony of DeSimone, Appellant explained that the cocaine had not arrived yet. DeSimone testified that Appellant apologized and then indicated that a Twenty-Five Dollar ($25.00) discount would be given when the cocaine arrived. Appellant made some additional attempts to phone her supplier to no avail on the evening of November 6, 1989. Undoubtedly, when construing this evidence in a light most favorable to Appellee, which is exclusive of the tape recording that Appellant complains of, reasonable minds could reach different conclusions since this evidence was presented to establish Appellant's offer to sale a controlled substance. Consequently, the trial court properly overruled Appellant's motion for acquittal as to this count. With respect to the second count, of permitting a motor vehicle to be used for the commission of a felony drug abuse offense, this court again concludes that Appellant's motion for acquittal as to this charge was properly overruled. In the above analysis as to the first of the remaining counts, this court recognizes that there is evidence such that reasonable minds -12- could reach different conclusions about proof beyond a reasonable doubt of the essential elements of a felony drug abuse offense. Because the second of the remaining counts pertains to the same incident, the only question as to that second remaining count is whether there was such evidence that reasonable minds could reach different conclusions about whether appellant permitted a motor vehicle to be used. In this regard, the evidence is quite sufficient that Appellant operated the motor vehicle during the November 6, 1989 encounter. Hence, the trial court properly overruled the motion for acquittal as to the second remaining count of permitting a motor vehicle to be used for the commission of a felony drug offense. Regarding the third count that was not dismissed, this court again concludes that Appellant's motion for acquittal was properly overruled because the evidence with respect to whether Appellant actually sold the ounce of cocaine on November 22, 1989 was such that reasonable minds could reach different conclusions as to whether the essential elements had been proven beyond a reasonable doubt. Detective Compton testified that Appellant's voice was the same one that was heard during the monitored phone call, that arranged the transaction. The tape recording of these phone calls audibly indicated Appellant saying yes she had the cocaine and that the price would be the same as the November 6, 1989 arrangements. Appellant also stated that she has a new supplier. Furthermore, Appellant held on to the money when it was given to -13- her by Detective Compton. There was also the testimony of Schultz that, once in the car, Appellant handed her the cocaine. Based on this evidence, the trial court properly overruled Appellant's motion for acquittal as to the sale of the controlled substance. The analysis of whether these convictions were against the manifest weight of the evidence is similar in some respects to the analysis of whether the motions for acquittal should have been overruled. The reason is the same established facts were such that reasonable minds could reach different conclusions about proof beyond a reasonable doubt of the essential elements of the crime are the same facts that preclude the convictions from being against the manifest weight of the evidence. In evaluating claims that a jury verdict is against the manifest weight of the evidence, this court is guided by our own case of State v. Mattison (1985), 23 Ohio App.3d 10 which held: In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: 1. The reviewing court is not required to accept as true the incredible; 2. whether the evidence is uncontradicted; 3. whether a witness was impeached; 4. what was not proved; 5. the certainty of the evidence; 6. the reliability of the evidence; 7. whether a witness' testimony is self-serving; 8. whether the evidence is vague, uncertain, conflicting of fragmentary. The Hamilton County Court of Appeals, in State v. Martin (1983), 20 Ohio App.3d 172, stated the manner in which a -14- reviewing court should review a claim for a conviction being against the manifest weight as follows: In considering the claim that the conviction was against the manifest weight of the evidence, the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. (Emphasis added.) There can be no conclusion, in the instant case, that the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The evidence, in this case, was such that a reasonable jury could find that Appellant offered to sell cocaine on November 6, 1989, and that she used a motor vehicle in the process. Lastly, for reasons mentioned previously, a jury could have concluded that Appellant sold the ounce of cocaine to Detective Compton on November 22, 1989. These convictions were not against the manifest weight of the evidence, according to the standards of Mattison and Martin, supra. Judgment affirmed. -15- 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. NAHRA, P.J., and SPELLACY, J., CONCUR. PATRICIA A. BLACKMON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .