COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67858 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION CARLOS GARCIA : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 24, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-310,350 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DEBORAH NAIMAN, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: DONALD J. O'CONNOR Attorney at Law 820 Rockefeller Building 614 Superior Avenue, N.W. Cleveland, Ohio 44113 AUGUST PRYATEL, J.: Carlos Garcia was found guilty after a jury trial of two counts of aggravated drug trafficking in violation of R.C. 2925.03 and one count of possession of criminal tools, including the gym bag and the cereal boxes wherein the heroin was found, in violation of R.C. 2923.24. He now appeals, raising two assignments of error for this court's review: I. THE APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II. THE COURT'S REFUSAL TO ORDER THE PROSECUTION TO REVEAL THE IDENTITY OF THE INFORMANT VIOLATED APPELLANT'S RIGHT TO CONFRONTATION OF WITNESS[ES] AGAINST HIM. For the reasons that follow, we find no error in the judgment below and affirm. I. The convictions stem from the transporting of 71.76 grams of heroin from New York to Cleveland, Ohio. The appellant was arrested and indicted along with three other individuals not parties to this appeal, co-defendants Yoraina Garcia, Emilio Rodriguez and Jose Gonzales. Defendant Gonzales pleaded guilty to reduced charges in exchange for which he testified against the appellant, Mr. Rodriguez and Ms. Garcia at their joint trial. In - 3 - addition to the testimony of Mr. Gonzales, the State of Ohio presented the testimony of six Cleveland police officers in its case against the appellant; viz., Patrolman and Canine Handler Timothy Russell, Detective Charles Charney, Detective Andrew Charchenko, Detective Edward Prinz, Detective Greg Whitney and Detective Daniel Rood. On April 14, 1994, a confidential informant advised Det. Rood of the Narcotics Unit that a large shipment of heroin was being transported to Cleveland from New York City via a Greyhound bus the following morning, April 15, 1994. The informant described the couriers as (1) an Hispanic male by the name of Carlos, (2) an older Hispanic male with short hair and (3) a third unidentified Hispanic male. It was subsequently learned from Greyhound that there were two buses coming in from New York City the next morning, one at 7:00 a.m. and the other at approximately 9:15 a.m. With this information, the police, together with the confidential informant, set up surveillance at the Greyhound bus station shortly before 7:00 a.m. on April 15, 1994. Det. Rood and the confidential informant were stationed in a van directly opposite the front doors to the Greyhound station. Following Det. Rood's instructions, the other officers were assigned to various locations in and around the Greyhound station. At approximately 9:18 a.m., the appellant exited the Greyhound bus station, at which time the confidential informant identified - 4 - him as "Carlos," one of the couriers. Det. Rood notified the rest of the surveillance team that the suspects had arrived. He gave a description of what the appellant was wearing to the other officers. A few minutes later, a second older Hispanic male, later identified as Jose Gonzales, exited the terminal. The confidential informant also identified Mr. Gonzales as one of the couriers. Det. Rood similarly passed this information on to the rest of the surveillance team. Mr. Gonzales was observed by police officers carrying a yellow and black bag into the terminal area. The appellant and Ms. Garcia were observed using a telephone in the terminal. Mr. Gonzales put the yellow and black bag by the wall by the telephone and went into the area between the double set of doors. At this time, Mr. Gonzales realized there were undercover police at the bus station. Mr. Gonzales returned to where the appellant and Ms. Garcia were standing and told them there were police on the scene. Mr. Gonzales then returned to where the bag was lying, picked it up and walked outside through the double set of doors and lit a cigarette. Mr. Gonzales quickly extinguished his cigarette and returned to the terminal. About this time, a third Hispanic male in an older model Chrysler, later identified as Emilio Rodriguez, parked behind an undercover vehicle. Mr. Rodriguez exited the car and went into the Greyhound station, where he was observed talking with the appellant. The confidential informant also identified Mr. - 5 - Rodriguez as being connected to this investigation. Det. Rood notified the other members of the surveillance team of Mr. Rodriguez's connection to the investigation. After a couple of minutes, Mr. Rodriguez returned to his vehicle and moved it to the front of the bus station. The appellant and Ms. Garcia then exited the bus station and entered the vehicle. As the vehicle pulled away, it was immediately stopped by the officers. No weapons or drugs were found on the appellant, Mr. Rodriguez or Ms. Garcia. Mr. Gonzales was arrested inside the terminal area. The yellow and black travel bag containing the heroin was discovered inside the waiting area between two sets of doors. Mr. Gonzales was identified by the police as the person who carried the bag into the terminal area. Through an interpreter, Jose Gonzales testified that prior to their arrest, he had known the appellant for approximately eight months. He was first introduced to the appellant in New York by the appellant's uncle, Alberto Pena. Mr. Pena would pay Mr. Gonzales $50 and two packages of heroin to transport heroin to Cleveland from New York City. Mr. Gonzales testified that he had carried drugs to Cleveland for Mr. Pena approximately eight or nine times before the April 15, 1994 transport. On each of these occasions, including the April 15, 1994 transport, Mr. Pena or the appellant would give Mr. Gonzales a travel bag containing drugs which were already packaged for sale. The appellant and Mr. Gonzales would then travel to Cleveland together. Mr. Gonzales's - 6 - role was solely to carry the bag containing the drugs. The appellant was responsible for making sure the drugs were delivered to the right people in Cleveland and for collecting and carrying the money from the drug sales. After all of the money was collected, the duo would then return to New York together. According to Mr. Gonzales, the appellant would not carry the bag containing the drugs because he was afraid of getting caught. With regard to the April 15, 1994 transport, Mr. Gonzales said Mr. Pena called him on April 14, 1994 and told him he had a package he needed him to bring to Cleveland for a "Mr. Able." Mr. Gonzales indicated that they had brought drugs to Cleveland for Mr. Able several other times. Mr. Pena also told Mr. Gonzales that the appellant would accompany him to Cleveland. Mr. Gonzales went to Mr. Pena's apartment, where he was given the yellow and black bag to take to Cleveland. Mr. Gonzales, the appellant and Yoraina Garcia then took the midnight bus to Cleveland, where they were arrested upon arrival. II. In his first assignment of error, the appellant asserts the jury's findings that he possessed and transported heroin were against the manifest weight of the evidence. The appellant argues that there was no competent, credible evidence from which it could be inferred that he exercised dominion or control over the heroin or that he played a role in transporting the heroin to Cleveland. - 7 - More specifically, the appellant argues that the testimony of his co-defendant, Mr. Gonzales, was not worthy of belief because Mr. Gonzales had a personal interest at stake; i.e., his plea bargain. In State v. Martin (1983), 20 Ohio App.3d 172, the court aptly set forth the test to be used by an appellate court when reviewing a claim that a conviction is against the manifest weight of the evidence. The Martin court stated as follows: *** [t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the 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. *** See, Tibbs v. Florida (1982), 4547 U.S. 31, 38-42. See, also, State v. Thomas (1982), 70 Ohio St.2d 79, 80 ("It is emphasized that an appellate court may not reverse the judgment of conviction unless reasonable minds could not fail to find reasonable doubt of the defendant's guilt. It is fundamental that the weight to be given the evidence and credibility of the witnesses are primarily for the trier of facts.") In State v. Zahn (Oct. 17, 1991), Cuyahoga App. No. 59121, unreported, this court held that where sufficient credible evidence exists for the trier of fact to conclude that a defendant is guilty, even if such evidence is based solely on the testimony of a co-defendant, the guilty verdict must be affirmed. After a review of the evidence adduced at trial, we find the prosecution presented substantial, competent and credible evidence - 8 - upon which the trier of fact could have reasonably concluded that 1 the appellant had constructive possession, i.e. dominion and control over the heroin, and further that the appellant knowingly prepared for shipment, shipped, transported, delivered, prepared for distribution or distributed heroin, knowing or having reasonable cause to believe the heroin was intended for sale or resale. The jury was fully aware of the fact that Mr. Gonzales was allowed to plead guilty to lesser offenses in exchange for his testimony against the appellant. Nevertheless, the jury chose to believe Mr. Gonzales's testimony that he carried the drugs to Cleveland because the appellant was afraid to carry them and that it was the appellant who (1) arranged for the delivery of the drugs in Cleveland and (2) collected and carried the money from the sales. Moreover, there was no evidence presented conflicting with that of Mr. Gonzales from which this court could now conclude that the jury clearly lost its way and created such a manifest miscarriage of justice that the convictions must be reversed and a new trial ordered. From all of the evidence presented, we conclude that a rational trier of fact could infer that the appellant was, in fact, the person controlling and directing the transportation of the 1 A person has constructive possession of a thing or substance when he is able to exercise dominion or control over it. State v. Wolery (1976), 46 Ohio St.2d 316, 332. - 9 - heroin and that Mr. Gonzales was simply a "mule," a person paid to transport drugs from one location to another. Thus, we cannot find that the verdicts are against the manifest weight of the evidence. The appellant's first assignment of error is overruled. In his second assignment of error, the appellant asserts that the trial court erred by not granting his motion to reveal the identity of the confidential informant, thereby denying him of the right to confrontation as guaranteed by the Sixth Amendment to the United States Constitution. The appellant argues that his ability to confront and cross-examine the informant may have proved to be exculpatory in that it may have revealed he was entrapped. In State v. Williams (1983), 4 Ohio St.3d 74, syllabus, the Ohio Supreme Court held that an accused is entitled to the disclosure of the identity of a confidential informant when "*** the testimony of the informant is vital to establishing an element of the crime or would be helpful or beneficial to the accused in preparing or making a defense to criminal charges." (Emphasis added.) The burden of establishing the need for disclosure falls upon the defendant. State v. Parsons (1989), 64 Ohio App.3d 63, 69. Something more than speculation about the possible usefulness of an informant's testimony is required. The mere allegation of entrapment is not, alone, sufficient to justify allowing the appellant access to the identity of the informant. State v. Butler (1984), 9 Ohio St.3d 156. A defendant must present some evidence - 10 - of entrapment before the defense is properly raised, State v. Doran (1983), 5 Ohio St.3d 187. Until the defense is properly raised, a court need not order the state to disclose the identity of the informant. State v. Butler, supra; State v. Watson (Dec. 29, 1993), Greene App. No. 92CA13, unreported; State v. Ray, supra. Additionally, the trial court's decision whether disclosure of an informant's identity is necessary is not reversible absent an abuse of discretion. State v. Feltner (1993), 87 Ohio App.3d 279; State v. Ray (Jan. 27, 1994), Cuyahoga App. No. 63966, unreported. An abuse of discretion means more than an error of law or judgment; it implies an attitude upon the part of the trial court that is arbitrary, unreasonable or unconscionable. State v. Adams (1980), 62 Ohio St.2d 1511, 157. In this case, we find no abuse of discretion by the trial court in denying the appellant's motion to reveal the identity of the confidential informant. The appellant presented no evidence at the hearing on his motion for disclosure of the identity of the informant sufficient to raise the defense of entrapment, and, thus, we decline to hold that the trial court improperly refused to grant the appellant's motion for disclosure. In addition, it is apparent to this court that the confidential informant's identity was disclosed at trial during the state's case. During defense counsel's cross-examination of Mr. Gonzales, Mr. Gonzales testified that Mr. Abel was with the police at the time the defendants were apprehended. Also during his - 11 - cross-examination, Det. Charney indicated that Mr. Abel was the informant. As the informant's identity came out at trial, appellant could have subpoenaed the informant if he chose to do so. For the foregoing reasons, the appellant's second assignment of error is overruled. Judgment affirmed. - 12 - 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 Court of Common Pleas 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. JAMES M. PORTER, P.J. DIANE KARPINSKI, J. CONCUR JUDGE AUGUST PRYATEL* *SITTING BY ASSIGNMENT: August Pryatel, retired Judge of the Eighth Appellate District. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .