COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67967 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION DOROTEO MORONTA : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 24, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-301136 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES DRAPER, ESQ., Cuyahoga Cuyahoga County Prosecutor County Public Defender FEDELE DESANTIS, ESQ. ROBERT M. INGERSOLL, ESQ. Assistant Prosecuting Attorney Assistant Public Defender The Justice Center 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant-appellant, Doroteo Moronta, appeals from his conviction for two counts of drug trafficking. For the following reasons, we affirm this conviction. Defendant was charged with a three-count indictment; count one charged the defendant with drug trafficking in violation of R.C. 2925.03, count two charged the defendant with drug trafficking in violation of R.C. 2925.09, count three charged the defendant with possession of criminal tools in violation of R.C. 2923.24. These charges resulted from the following series of events. From August 19, 1993, to August 25, 1993, because of suspected drug activity, Detectives Walter Thomas and Steven Ryan of the Cleveland Police Narcotics Unit began observing the residence at 3215 West 94th Street. Thomas and Ryan observed numerous people exit and enter the house. Additionally, on many occasions the detectives observed cars pull up to the driveway whereupon defendant would have brief conversations with the people in the car and escort them into the house. During this time, a confidential police informant conducted a controlled purchase of five packets of heroin, for which the informant paid $100. Each packet was a folded piece of wax-like paper. After the observations of the detectives, and the controlled buy, the Cleveland Police Department obtained a search warrant for the premises at 3215 West 94th Street. On August 25, 1993, - 3 - six Cleveland Narcotics Officers and six Cleveland SWAT Unit Officers executed the search warrant. Detective Randall Bergeon, was assigned to watch the rear of the house along with Officer Thomas and Officer Lewis. As the search took place, Bergeon ran to the rear of the building and stopped beside the porch at the rear door. Bergeon testified that the door to the kitchen was open, there was no screen on the door, and the kitchen lights were on. As Bergeon approached the rear door, he saw the defendant moving toward the doorway. When Bergeon yelled for the defendant to freeze, the defendant threw what was later labeled as State's Exhibit No. 7 out the back door. The object flew over Bergeon's head and landed about ten feet behind him. Defendant was immediately apprehended by SWAT officers, who had entered the kitchen. Bergeon further testified that he watched the defendant during this time and had a good look at defendant's face. He described the defendant as wearing a red and white plaid shirt and looking like Johnny Mathis with a beard. Bergeon did not take his eyes off the defendant until the SWAT team secured the defendant. Bergeon retrieved the object thrown by the defendant, which was identified as a Newport brand hard-pack cigarette package. The forensic laboratory report showed the package to contain "Five bundles of 10 glassine packets and 1 bundle of 6 glassine packets all containing white powder (a total of 56 packets). Analyzed and found to be POSITIVE for HEROIN Class I. Wt.= - 4 - 1.02g." Testimony showed that this is the way heroin is packaged for sale. Officer Butler testified that he was one of the SWAT team members who entered the house from the front. He testified that he secured the defendant in the kitchen. He corroborated that the defendant was wearing a red and white plaid shirt and that no one else was in the kitchen at this time. The defense presented six witness, of which Miriam Rodriguez was the first to testify. She testified that the defendant was in the living room when the police entered the house. She further testified that although there was confusion at this time, she never lost sight of the defendant and he never went into the kitchen. She stated that defendant was wearing a solid shirt with burgundy flowers. Ms. Rodriguez then stated she saw David Diaz before the raid in the kitchen wearing a red and white plaid shirt; however, when the police brought Diaz up from the basement, he was wearing no shirt. Finally, Ms. Rodriguez stated she had never seen anyone selling drugs in the house but admitted her house had previously been raided for drugs sales. The next witness for the defense was Terasa Pedraza, who stated that before the raid, the defendant and Diaz were in the kitchen and that when Diaz was brought up from the basement, he was wearing no shirt. The defendant took the stand on his own behalf. He testified that he was visiting in the house. He stated that he was in the living room, not in the kitchen, when the police - 5 - entered. He further denied throwing the packet of heroin out the back door. Ipolito Santos, a.k.a. Ipolito Almodovar, testified that he was in the bedroom when arrested. He did not remember much else about the night. Raphael Rodriguez testified that the defendant was wearing a burgundy shirt with flowers and not a red and white plaid shirt. He further testified that Diaz was in the kitchen before the raid wearing a red and white plaid shirt. Rodriguez then stated that when the police came, Diaz ran into the basement and threw his shirt into the washing machine. Lillian Viruet was the last witness for the defense and she stated the defendant was in the living room at the time of the raid and that he never went into the kitchen. She further testified that Diaz was in the kitchen prior to the raid wearing a red and white plaid shirt. She also conceded that she did not remember much about the night in question. April 11, 1994, the jury found defendant guilty of drug trafficking as charged in the first two counts. The jury found defendant not guilty on the third count of possessing criminal tools. The trial court sentenced defendant to one year on count one to run consecutively with an 18-month sentence on count two. Defendant timely appealed to this court raising three assignments of error. Defendant's first assignment of error states as follows: DOROTEO MORONTA WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION FOR DRUG TRAFFICKING - 6 - IN COUNT ONE (TRANSPORTING, DELIVERING, PREPARING FOR DISTRIBUTION OR DISTRIBUTING HEROIN KNOWING OR HAVING REASONABLE CAUSE TO BELIEVE SAID DRUG WAS FOR SALE OR RESALE BY MORONTA OR ANOTHER) WHEN SAID CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE, AS A MATTER OF LAW, TO PROVE HIS GUILT. In this assignment of error, the defendant challenges the sufficiency of the evidence to sustain a conviction under count one of the indictment. In reviewing a Crim.R. 29(A) motion, the trial court must view the probative evidence and inferences reasonably drawn therefrom in a light most favorable to the prosecution. State v. Martin (1983), 20 Ohio App.3d 172. If the court finds the evidence is such that "reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt, the issue is presented to the jury." State v. Bridgeman (1978), 55 Ohio St.2d 261. When reasonable minds could not convict, a Crim.R. 29(A) motion must be granted, the charges should be dismissed, and the case should not be given to the jury. Id. Defendant was convicted in count one of violating R.C. 2925.03(A)(2), which provides as follows: (A) No person shall knowingly do any of the following: * * * (2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe the controlled substance is intended for sale or resale by the offender or another[.] In the case at hand, viewing the evidence in a light most favorable to the prosecution, it is clear the evidence was sufficient to present the case to the jury. The prosecution - 7 - presented competent credible evidence that defendant knowingly prepared the heroin for distribution. Officer Bergeon watched the defendant throw the package out of the house--a package containing heroin in a form ready to be sold. Officer Bergeon, who watched the defendant from the time he yelled "freeze" until the time the defendant was secured by the SWAT team, immediately identified the defendant as the person who discarded the package. Verifying this identification, Officer Butler testified that defendant was standing in the back doorway when he was secured by the SWAT team and no one else was in the kitchen at that time. In State v. Curry (Dec. 17, 1992), Cuyahoga App. No. 63438, unreported, a case with similar facts to the case at bar, this court found sufficient evidence to support a conviction under R.C. 2925.03(A)(2). In Curry, the arresting officer observed a stopped car with a group of males standing around, who ran when they saw the police. The defendant was then seen throwing six pieces of crack cocaine to the ground, three of which were packaged in newspaper. The court found sufficient evidence that the defendant possessed the cocaine with knowledge that the cocaine was intended for sale or resale. Based on the precedent of Curry, and the testimony of the police officers, we find this assignment of error to be without merit. Defendant's second assignment of error states as follows: DOROTEO MORONTA'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In this assignment of error defendant challenges his conviction for both counts one and two. Defendant was convicted - 8 - in count one for violating R.C. 2925.03(A)(2), which provides as follows: (A) No person shall knowingly do any of the following: * * * (2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe the controlled substance is intended for sale or resale by the offender or another[.] Defendant was convicted in count two for violating R.C. 2925.03(A)(4), which provides as follows: (A) No person shall knowingly do any of the following: * * * (4) Possess a controlled substance in an amount equal to or exceeding the bulk amount, but in an amount less than three times that amount. The standard for evaluating claims that a conviction is against the manifest weight of the evidence has been summarized as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here 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 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. State v. Martin (1983), 20 Ohio App.3d 172, 175. Having already found sufficient evidence to sustain a conviction, under this assignment of error, we must look at the - 9 - quality of the evidence presented. We are presented with conflicting testimony on a few points. The defendant and Ms. Rodriguez stated that the defendant was in the living room, not the kitchen, at the time of the raid. Other defense witnesses stated that the defendant was wearing a burgundy shirt with flowers, not a red and white plaid shirt. Officer Bergeon and Officer Thomas stated that the defendant, standing in the back doorway at the time he was apprehended, was wearing a red and white plaid shirt. Furthermore, photos taken at the scene show the defendant wearing a red and white plaid shirt. It is the jury's task to resolve conflicting pieces of evidence. State v. Glenn (1986), 28 Ohio St.3d 451, 456. In this case, it was within the province of the jury to believe the officer's testimony over the testimony of the defense witnesses. This does not appear to be a case of the jury losing its way and creating a manifest miscarriage of justice. This assignment of error is overruled. Defendant's third assignment of error states as follows: DOROTEO MORONTA WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL BEFORE AN IMPARTIAL JURY BY PROSECUTORIAL MISCONDUCT. In this assignment of error, defendant argues that he was denied a fair trial when, on cross-examination, the prosecutor asked defendant 1) whether Detective Thomas was lying when he testified the defendant told him the defendant lived in New Jersey, and 2) whether Officer Dodus was lying when he said the - 10 - police did not allow Ipolito Almodovar to put on his pants before bringing him downstairs. This court recently addressed the issue of whether a defendant is denied a fair trial when he is asked on cross- examination whether a police officer is lying. State v. Brewer (June 22, 1995), Cuyahoga App. No. 67782, unreported. This court in Brewer stated a conviction may be reversed because of prosecutorial misconduct where it is determined that the prosecutor's remarks were improper and that the remarks had a prejudicial effect on substantial rights of the defendant. [Citations omitted.] A new trial will be ordered only where the outcome of the trial would clearly have been different but for the alleged misconduct. The Brewer court then held that, while it may have been improper to ask the defendant whether the police officers were lying during their testimony, there was no indication that the defendant would have been acquitted absent the improper conduct of the prosecutor. In the instant case, it does not appear that defendant was prejudiced by being asked whether the police officer was a liar. Two officers testified that defendant was stopped in the back doorway during the police raid. Officer Bergeon testified that he watched defendant during the entire episode and that he clearly saw defendant throw the object that later was identified as a cigarette package containing bundles of heroin. Even if the defendant had not been asked whether the officers were lying, there was still ample evidence to convict the defendant of the crimes charged. This assignment of error is overruled. - 11 - 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 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. PORTER, P.J., and PRYATEL*, J., CONCUR. DIANE KARPINSKI JUDGE *Judge August Pryatel, Retired, of the Eighth District Court of Appeals, sitting by assignment. 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 .