COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67597 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION LEON REAVES, JR. : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : AUG. 24, 1995 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 307361 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. John Parker, Esq. Cuyahoga County Prosecutor 4403 St. Clair Avenue By: Peter Gauthier, Esq. Cleveland, Ohio 44103 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- HARPER, J.: Appellant was arraigned on May 6, 1994 on a four-count indictment for carrying a concealed weapon; possessing cocaine over the bulk amount but less than three times the bulk amount; preparation for shipment of cocaine and possession of criminal tools. Appellant entered a not guilty plea to each count. The appellant was convicted, after a jury trial, of carrying a concealed weapon and for possession of cocaine in less than the bulk amount. Appellant was found not guilty of the remaining counts. Appellant was sentenced to eighteen months on the drug possession charge, and two years incarceration on the carrying a concealed weapon charge. The sentences were to be served consecutively. Appellant now appeals the sentences. I. The following facts were adduced at trial: The appellant was driving northbound in the city of Lakewood on W. 117th Street on the morning in question. He had made a left hand turn into an intersection, and was driving left of the center line. Appellant was stopped by a Lakewood Police Officer, Patrolman Moher. The officer believed that appellant was intoxicated and administered several field sobriety tests which the appellant passed. By this time, Patrolman Fiorelli arrived to assist Patrolman Moher. Patrolman Moher testified that he tried to obtain personal information about appellant but appellant gave a false name before revealing his true identity. After running a check on appellant's real name, the officer discovered that appellant had an outstanding -3- warrant for driving while under suspension. Appellant was arrested. The officers verified that the passenger in the car did not have any driving privileges. The passenger was released and walked away. The officer made arrangements to have the car towed. Patrolman Fiorelli started an inventory search of the car and Sergeant Ciresi assisted him. Patrolman Fiorelli found a handgun under the driver's seat during the inventory search, and later found a duffel bag in the trunk of the car which contained cocaine. Appellant was arrested for carrying a concealed weapon. Patrolman Fiorelli then proceeded down the street to arrest the passenger. Detective Kozemba testified that appellant had been read his Miranda rights and that the appellant signed a form stating that he understood his rights. Detective Kozemba then testified that the appellant told him that he knew that the gun was in the car and that it belonged to his brother, the passenger in the car. The detective testified that the appellant told him that they, the appellant and the passenger, hid the gun under the seat when the patrolman stopped the car. The appellant also told the detective that the drugs in the car were his, but he was not attempting to sell the drugs. Sergeant Ciresi testified that he assisted Patrolmen Moher and Fiorelli in the arrest of the appellant. Sergeant Ciresi testified that by the time he arrived on the scene, Patrolman Moher had discovered the gun. He said that he assisted Patrolman Fiorelli in -4- the search of the passenger of the car. Pursuant to that search, the officers found crack-cocaine on the passenger's person. Patrolman Fiorelli testified that he assisted Patrolman Moher in the arrest of appellant. Patrolman Fiorelli testified that the appellant initially gave false information to Patrolman Moher. Patrolman Fiorelli stated that the appellant admitted that he lied about his identity because he had an outstanding warrant from Cleveland Heights. Patrolman Fiorelli stated that after appellant provided the correct information to Patrolman Moher, the dispatcher informed them that the appellant was driving while under suspension. Patrolman Fiorelli testified that he started the inventory search and that he found the handgun. The defense presented Ms. Corazetta Jackson as its only witness. Ms. Jackson testified that she worked at the Cleveland Clinic for eleven years and lived with the appellant. Ms. Jackson testified concerning the appellant's work employment and that she had never seen him with a gun or drugs. Appellant was convicted of violating R.C. 2925.03 and 2923.10. Appellant timely appeals the conviction. II. Appellant assigns the following assignments of error: I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE APPELLANT A ONE DAY CONTINUANCE OF THE TRIAL DATE. II. TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO FILE A MOTION TO SUPPRESS EVIDENCE THAT WOULD HAVE BEEN GRANTED IF IT HAD BEEN FILED. -5- III. THE APPELLANT WAS DENIED A FAIR TRIAL AND DUE PROCESS BY THE COURT'S CONDUCT AND TREATMENT OF DEFENSE COUNSEL THROUGHOUT THE TRIAL. IV. PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT DENIED THE APPELLANT OF HIS DUE PROCESS RIGHTS AND A FAIR TRIAL UNDER THE U.S. AND OHIO CONSTITUTIONS. V. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING THE MAXIMUM SENTENCE WITHOUT CONSIDERING THE CRITERIA OF R.C. 2929.12 Appellant, in his first assignment of error, charges that the trial court abused its discretion when the trial court denied his request for a one-day continuance of the trial date. The grant or denial of a continuance is a matter which is entrusted to the broad, sound discretion of the trial judge. State v. Powell (1990), 49 Ohio St.3d 255, 259; State v. Unger (1981), 67 Ohio St.2d 65, 67. Only upon a broad, sound showing that the trial court abused its discretion will an appellate court disturb a trial court's judgment. An abuse of discretion connotes more than an error of law. It implies that the court's attitude is unreasonable, arbitrary, and unconscionable. State v. Adams (1980), 62 Ohio St.2d 151. In determining whether to grant or deny a motion for continuance, the trial judge may consider the following factors: the length of the delay requested; prior continuances; inconvenience; the reasons for the delay; whether the defendant contributed to the delay; and other relevant factors. Unger, supra, at 67-68. The reviewing court must weigh potential prejudice to a defendant against "a court's right to control its -6- own docket and the public's interest in the prompt and efficient dispatch of justice." Unger, supra, at 67. In the instant case, though trial was set for Monday, June 13, 1994 at 9:00 a.m., the trial actually began about forty-five minutes late, and moments before the jury was to enter the courtroom, counsel for appellant requested a continuance. Appellant maintains that the trial court's decision to deny the continuance was an abuse of discretion under the Unger analysis, because he needed additional time to consider accepting the plea to one fourth degree felony and the third degree felony. He also needed time to tend to personal affairs. However, we disagree with appellant. The appellant had been out on bond for five weeks; this should have been sufficient time for the appellant to meet and to consult with his legal counsel. Under these circumstances, we believe that the trial court did not abuse its discretion by denying appellant's motion for continuance. Appellant's first assignment of error is not well taken. Next, we turn to appellant's second assignment of error wherein appellant charges that his counsel was ineffective because counsel failed to file a motion to suppress. The controlling United States Supreme Court case on effective assistance of counsel is Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 80 L.Ed.2d 674. The Strickland case set forth a two- prong analysis to determine the validity of a claim of ineffective assistance of counsel. The court stated the defendant must show that counsel's performance fell "below an objective standard of -7- reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. It is unnecessary for a reviewing court to "`address both components of the inquiry if the defendant makes an insufficient showing on one.'" State v. Bradley (1989), 42 Ohio St. 3d 136, 141-142, 538 N.E.2d 373, certiorari denied (1990), 497 U.S. 1011, 110 S.Ct. 3258, 11, L.Ed.2d 768. Deficient performance occurs when the counsel fails to function as the counsel guaranteed by the Sixth Amendment. Strickland, supra. The Sixth Amendment does not require that defense counsel file a motion to suppress in every case. Kimmelman v. Morrison (1986), 477 U.S. 365, 385-86, 91 L.Ed. 2d 305 106 S.Ct. 2574. "Where the record contains no evidence which would justify the filing of a motion to suppress, the appellant has not met his burden of proving that his attorney violated an essential duty by failing to file the motion." State v. Gibson (1980), 69 Ohio App.2d 91, 95, 430 N.E.2d 954. Here, appellant claims that he was denied the right to effective assistance of counsel because had counsel filed a motion to suppress, the motion would have been granted and the trial would not have taken place. In essence, appellant argues that the motion to suppress would have been granted, because the Lakewood police detained him and conducted an improper search. Specifically, appellant maintains that he should not have been detained after the police determined that he was not driving while under the influence. Appellant contends that the police lacked a reasonable -8- basis to run a warrant check and demand the appellant's identification. The scope and duration of the investigative stop must last no longer than is necessary to effectuate the purpose for which the initial stop is made. State v. Bevan (1992), 80 Ohio App.3d 126. A police officer has no authority to demand the driver's license, once the suspicions that trigger the initial stop are no longer present. State v. Venham (1994), 96 Ohio App.3d 649, 656. Appellant invokes State v. Chatton (1984), 11 Ohio St.3d 59 for the proposition that a police officer does not have the legal authority to detain the individual and demand that he produce a driver's license, once the initial reason for the initial stop has been extinguished. We believe that the facts of the instant case are distinguishable from that of Chatton. In Chatton, a police officer stopped and detained a driver, after the driver had produced temporary tags for the car. The Lakewood police officers, unlike the police officers in Chatton, had a lawful basis to stop the appellant and ask for a driver's license. According to the police officer's testimony, the appellant's driving violated R.C. 4511.25, because the appellant was driving left of the center line, after he made a left hand turn. After stopping the vehicle, the police officers smelled alcohol and noticed that the appellant's eyes were bloodshot. The police officers asked the appellant for his driver's license and the appellant did not have the driver's license on his person. The police do have the authority to request the driver of a lawfully stopped vehicle to display a driver's license. Venham, -9- supra, citing State v. Evans (1993), 67 Ohio St.3d 405, 407. The information that the appellant gave to the police officers did not correspond to a driver's license being issued in the appellant's name. Pursuant to R.C. 4507.35, if a person does not have his license on or about his person, it is prima facia evidence that he does not have a license. The officers then asked the appellant for more information. Pursuant to this request, the appellant provided the police with his correct name and date of birth. The police forwarded this information to the dispatcher, the information revealed that a warrant had been issued for the appellant's arrest. Given these circumstances, we do not agree with the appellant that there was a reasonable probability that the motion to suppress would have been granted, had appellant's counsel filed the motion. We do not find appellant's argument to be well taken. Appellant's assignment of error should be overruled. In appellant's third assignment of error, appellant charges that he was denied a fair trial and due process by the court's conduct and treatment of defense counsel throughout the trial. Specifically, appellant claims that he was prejudiced by the trial court's treatment of defense counsel in that the judge gave the jury an unfavorable impression of counsel. It is well established that a trial judge must at all times be impartial and refrain from comments which might influence the jury. State v. Boyd (1989), 63 Ohio App.3d 790. A judge must be cognizant of the effects upon the jury. State v. Wade (1973), 53 Ohio St.2d 182. -10- Appellant refers to several instances of conduct by the trial judge to support his argument that the judge created an unfavorable impression of counsel in the minds of the jury. However, we disagree with appellant's contention. Counsel points to instances where the jury was not in the courtroom. With respect to the one instance that counsel points to where the jury was in the courtroom, we do not believe that this comment created an unfavorable impression. Similarly, we do not believe that the judge created an unfavorable impression about counsel in the minds of the jury with respect to an exchange between counsel and the trial judge when the trial judge said: "That's been asked and answered. You may ask another question"; "You may not [approach]." We decline to accept appellant's contention that these remarks by the judge create an unfavorable impression of counsel in the eyes of the jury. "The trial judge has a duty to control all the proceedings during a criminal trial" and "shall limit the introduction of evidence and the argument of counsel to relevant and material matters with a view to expeditious and effective ascertainment of the truth regarding matters in issue." State v. Wade (1987), 53 Ohio St.2d 182. Therefore, appellant's assignment of error should be overruled. In appellant's fourth assignment of error, appellant claims that prosecutorial misconduct in the prosecutor's closing argument denied the appellant of his due process rights and a fair trial under the U.S. and Ohio Constitutions. Specifically, appellant charges that the prosecutor's statements in the closing argument -11- invited the jury to go beyond the evidence. In addition, appellant claims that the prosecutor's closing remarks constituted plain error. "The standard for determining plain error is whether the substantial rights of the accused have been so adversely affected as to undermine the fairness of the guilt-determining process." State v. Brown (1993), 85 Ohio App.3d 716, 719, citing State v. Swanson (1984), 16 Ohio App.3d 375, 377. We note that counsel is given wide latitude in closing argument to discuss what the evidence has shown, as well as to argue reasonable inference which may be drawn from the evidence. State v. Stephens (1970), 24 Ohio St.2d 76, 82. "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." State v. Slage (1992), 65 Ohio St.3d 605, 609. A reviewing court, in determining whether a prosecutor's remark's during closing argument constitute prejudicial error, must decide whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the appellant. State v. Smith (1984), 14 Ohio St.3d 13. The closing argument is considered in its entirety to determine whether it was prejudicial. State v. Moritz (1980), 63 Ohio St.2d 150, 157. After reviewing the record before this court, we do not believe that the prosecutor's remark jeopardized the fairness of the appellant's trial. The appellant refers to two instances in the prosecutor's closing arguments to support his contention that the -12- prosecutor's remarks prejudicially affected the substantial rights of the appellant. In the first instance, the appellant charges that the prosecutor accused defense counsel of tampering with evidence by slamming his fist on the rocks of cocaine. However, in this instance, the prosecutor was discussing the amount of "rocks" in the baggie. The prosecutor mentioned that there would be less than 25 "rocks" in the bag, because the defense counsel slammed his fist on the "rocks." Moreover, the prosecutor went on to say that he did not believe the defense counsel did this on purpose. With respect to the second instance, the prosecutor rebutted the allegation of racism raised by the appellant. The prosecutor referred to the evidence presented to the jury to demonstrate that racism was not an issue in this case. These comments, in our opinion, do not as a whole taint the fairness of the appellant's trial. In the instant case, the jurors were instructed by the judge that the closing arguments by counsel were recapitulations of the evidence presented and counsel's commentary about the offered evidence. We do not believe that the comments by the prosecutor deprived the appellant of a fair trial. Accordingly, we overrule appellant's assignment of error. In appellant's fifth assignment of error, appellant claims that the trial court abused its discretion when he was sentenced to a consecutive sentence of eighteen months incarceration for the drug possession charge, and two years incarceration on the weapon charge without considering the criteria of R.C. 2929.12. Specifically, appellant charges that he was given the maximum -13- sentence because he exercised his right to a jury trial and that his counsel and the court did not see "eye to eye." On review, the appellate court "should not substitute its judgment for that of the trial court; rather, an appellate court should decide only whether the sentence is constitutional." State v. Williams (1981), 89 Ohio App.3d 288, 294. A trial court has broad discretion in sentencing a defendant and the trial court must consider certain statutory sentencing factors as set forth in R.C. 2929.12. The failure to do so is an abuse of discretion. State v. Bivens (1988), 49 Ohio App.3d 75, 77; State v. Yontz (1986), 33 Ohio App.3d 343, 343. A trial court has broad discretion in sentencing within the statutory limits. State v. Grigsby (1992), 80 Ohio App.3d 291. Where criminal sentencing is within statutory limits, the appellate court should accord the trial court the presumption that it considered statutory mitigating criteria in the absence of an affirmative showing that it failed to do so. State v. Taylor (1992), 76 Ohio App.3d 835, 839. The appellant carries the burden to rebut the presumption that the sentencing criteria in R.C. 2929.12 has not been followed. State v. Cyrus (1992), 63 Ohio St.3d 164; State v. Adams (1988), 37 Ohio St.3d 295. In the instant case, appellant was sentenced to the maximum term of incarceration of eighteen months and the mandatory fine of $1,500.00 on count one, violation of R.C. 2925.03, the drug possession charge, a felony of the fourth degree, and the maximum term of incarceration of two years on count four for carrying a concealed weapon, a felony of the third degree, in violation of -14- R.C. 2923.12. Appellant is to serve the sentences consecutively. According to the testimony of the arresting officers, the appellant's gun was loaded with five rounds. With respect to the drug possession charge, appellant was found guilty of possessing approximately 6.6 grams of cocaine. We decline to accept appellant's argument that the trial court abused its discretion in imposing its sentence. Accordingly, we find that appellant's assignment of error should be overruled and appellant's sentence affirmed. 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 Cuyahoga County 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. JOHN T. PATTON, C.J., AND PATRICIA ANN BLACKMON, J., CONCUR. JUDGE SARA J. HARPER 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 .