COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67782 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : TERENCE BREWER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JUNE 22, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-309196 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender STEVE W. CANFIL, ESQ. BY: ROBERT M. INGERSOLL, ESQ. Assistant County Prosecutor Assistant Public Defender 8th Floor Justice Center The Marion Building, Room 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 -3- PATRICIA ANN BLACKMON, J.: Terence Brewer, defendant-appellant, appeals a decision from the trial court convicting him of carrying a concealed weapon and having a weapon while under disability. Brewer assigns the following three errors for our review: I. TERRANCE (sic) BREWER WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL, BY PROSECUTORIAL MISCONDUCT COMMITTED DURING HIS CROSS-EXAMINATION. II. TERRANCE (sic) BREWER WAS DENIED HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, WHEN A STATE WITNESSES (sic) TESTIFIED ABOUT TEST RESULTS THAT THE WITNESS DID NOT PERFORM HIMSELF. III. TERRANCE (sic) BREWER WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On March 26, 1994, two Cleveland police officers responded to a call of drug dealers creating a disturbance. When they arrived on the scene of the call, the officers spotted a black Camaro stopped in the middle of the street. They saw a male later identified as Brewer walk away from the Camaro with his hands in his pockets. As the Camaro drove away, the officers drove their patrol car in the same direction. As the officers drove by, they watched as Brewer walked into the garage of an abandoned house. When he withdrew his hands from his pockets, the officers saw that Brewer was holding a chrome or silver gun in one hand and a black -4- object in the other hand. Brewer then reached up over his head and placed the gun and the other object atop the open garage door. The police continued past the garage and went to turn around. At this time, the officers lost sight of Brewer for a few moments. When they returned to the area of the garage, the officers saw Brewer walk toward a white Cutlass automobile and enter the car on the passenger side. The officers pulled up behind that car and asked Brewer to step out of the vehicle. When he did so, he was patted down and placed into the rear of the police cruiser. The driver of the Cutlass was also ordered out of the vehicle when police discovered a screwdriver on the driver's side floor of the car and noticed that the steering column had been peeled. One of the officers went back to the garage and retrieved two loaded guns from atop the open garage door. When asked about the guns, Brewer denied knowledge of them and claimed that he had only gone to the garage to urinate. Despite his denial, Brewer was arrested. Brewer went to trial on charges of carrying a concealed weapon with a firearm specification and having a weapon while under disability with firearm and violence specifications. After a jury trial, he was convicted and sentenced to consecutive terms of four to ten years for carrying a concealed weapon, 18 months to five years for having a weapon while under disability, and three years for the firearm specification. This appeal followed. The issue raised by Brewer's first assignment of error is whether misconduct by the prosecutor denied him his right to a fair trial. Brewer argues the prosecutor improperly asked him whether -5- the police officers who arrested him were lying during their testimony in court. Brewer claims the prosecutor's questions subjected him to resentment from the jury for a perceived attack on a trusted authority figure such as a police officer and that such resentment may have been the deciding factor in Brewer's conviction. A conviction may be reversed due to prosecutorial misconduct whether it is determined that the prosecutor's remarks were improper and that the remarks had a prejudicial effect on substantial rights of the defendant. State v. Lott (1990), 51 Ohio St.3d 160,174. A new trial will be ordered only where the outcome of the trial would clearly have been different but for the alleged misconduct. See State v. Hill (July 23, 1992), Cuyahoga App. No. 60700, unreported at 17. In this case, the prosecutor acted improperly by asking Brewer whether the two police officers were lying during their testimony. However, our review of the record yields no indication that Brewer would have been acquitted absent the improper conduct of the prosecutor. Two police officers testified that they saw Brewer remove the guns from his pocket and hide them. Brewer claimed that he never had the guns. In order for the jury to resolve the conflicting testimony, they had to decide which witnesses to believe. Even without the challenged comments, the state presented substantial evidence upon which the jury could reasonably convict Brewer of the charges against him. After reviewing the entire -6- record, we cannot find that the jury's verdict was materially affected by the prosecutor's conduct. Brewer next argues he was denied his right to confront the witnesses against him when Officer Sako testified about operability tests performed by another detective on the guns seized from the garage. The cases cited in support of his argument pertain to instances where a witness' testimony is based solely on a report of tests conducted by someone else. A different situation is presented by this case because Sako testified about tests which he himself witnessed. His testimony was based on his personal observations that the guns were operable. Furthermore, Brewer had an opportunity to cross examine Sako and did, in fact, do so. Brewer's confrontation rights were not violated. In his third assignment of error, Brewer argues he was denied his constitutional right to effective assistance of counsel. In order to establish ineffective assistance of counsel, Brewer must show that trial counsel's performance fell below an objective standard of reasonableness and that, but for counsel's errors, the outcome of the trial probably would have been different. Strickland v. Washington (1984), 466 U.S. 668,693,698. Brewer argues trial counsel was ineffective because he failed to object at trial to the matters raised in his first and second assignments of error. As discussed above, we find no reversible error. Absent evidence that the outcome of the trial was effected by the alleged errors, Brewer's claim of ineffective assistance of counsel is without merit. -7- Finding no merit to any of Brewer's assignments of error, we affirm the decision of the trial court. -8- Judgment affirmed. It is ordered that Appellee recover of Appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, C.J., and KARPINSKI, J., CONCUR. PATRICIA ANN 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- .