COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68850 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : CYNTHIA LYNN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 7, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 318889 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PATRICK E. TALTY, ESQ. Cuyahoga County Prosecutor 20800 Center Ridge Road DEBORAH NAIMAN, ESQ. Suite 211 JOHN W. MONROE, ESQ. Rocky River, Ohio 44116 Assistant Prosecuting Attorney 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, J: Defendant-appellant, Cynthia B. Lynn aka Cynthia Hayden, appeals her conviction for trafficking in drugs with a violence specification and a juvenile specification. Lynn assigns the following errors for our review: I. THE TRIAL COURT ERRED BY NOT GRANTING DEFENDANT'S MOTION FOR ACQUITTAL BECAUSE THE EVIDENCE PRESENTED WAS INSUFFICIENT TO SHOW THAT DEFENDANT WAS INVOLVED IN THE SALE OF THE DRUGS IN QUESTION. II. THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR AN ORDER TO THE PROSECUTING ATTORNEY TO REVEAL THE IDENTITY OF THE UNIDENTIFIED INFORMANT. III. THE TRIAL COURT ERRED IN ADMITTING THE STATE'S EXHIBITS INTO EVIDENCE BECAUSE THEY WERE IRRELEVANT, CUMULATIVE AND TENDED TO CAUSE CONFUSION TO THE TRIERS OF FACT. 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 November 19, 1994, "Rick" was a staying in room 224 of the Lakewood Manor Motel in Lakewood, Ohio. "Rick" was a confidential informant working for the Lakewood Police Department. On that morning, Rick was approached by a man named Sylvester aka "Sly Dog." Sylvester told Rick he was staying in room 226 and offered to sell Rick some cocaine. Rick told Sylvester he wanted to buy two ounces of cocaine. Sylvester took Rick's pager number and told him he would be back around 5:00 p.m. During the course of the day, Rick telephoned Room 226 several times to see if Sylvester had returned, and each time he talked -3- with Lynn. At 5:00 p.m., Rick knocked on the door of Room 226, and Lynn answered the door. She was in the room with her two children. Rick asked her if Sylvester had returned. Lynn said "no" and expressed concern because she was expecting Sylvester to bring food for her and her children. Rick volunteered to go to a McDonald's restaurant and get them some food. When Rick returned from McDonald's, Lynn asked him, "What was Sylvester supposed to do for you?" Rick told her he wanted to buy two ounces of cocaine. Lynn made several telephone calls, but was unable to contact Sylvester. She then told Rick that she would arrange for him to purchase the cocaine. Lynn paged Antonio Pryor who was a juvenile. He returned the page and agreed to come to the motel. Rick returned to his room to wait for Pryor's arrival. When Pryor arrived at the motel, Lynn telephoned Rick, and Rick went to room 226 to meet him. Lynn and her two children were also present in the room. Because Pryor wanted to see the money first, Rick paged Detective Bruce Wilkins and arranged to have the money brought to him. While they were waiting for the money to arrive, Pryor attempted to test whether Rick was a police officer. Pryor produced a rock of crack cocaine, and Lynn produced a pipe for Rick to smoke the crack cocaine. Rick lit the rock, put his mouth to the pipe, but did not smoke it. He then passed it to Lynn who smoked the crack. Rick received a page from Wilkins, went back to Room 224 to get the money for the purchase, and Wilkins gave him $1,800. Rick went back to Room 226 and showed Pryor the money. Pryor left the -4- room to get the cocaine and when he returned, the money was exchanged for the cocaine. Rick opened the door to leave and Pryor was behind him. Lynn asked Rick if he would "tighten her up," which was her way of asking to be compensated for setting up the drug transaction. Rick told her to get it from Pryor. As they walked out of the room, Pryor saw the police, and attempted to run away, but he was apprehended. Pryor and Lynn were placed under arrest. The police also placed Rick under arrest to conceal his role as an informant. Lynn was indicted for trafficking in drugs, cocaine, with a juvenile specification because of the presence of her children during the transaction and a violence specification due to a prior conviction for robbery. On February 10, 1995, Lynn moved for an order to the prosecution to reveal the identity of its confidential informant. On April 3, 1994, the trial court conducted a hearing on the motion. Detective Wilkins was the sole witness to testify. Wilkins testified Pryor approached Rick on the street, at some time after the arrests but before trial, and made a hand gesture as if firing a gun to threaten Rick. Wilkins also learned from a Cleveland Police Officer and other informants in the area of West 80th Street and Detroit Avenue that some people were out to get Rick because of the arrests at the motel. Wilkins further indicated Rick was introduced to him by a Cleveland Police Officer in 1988. Wilkins conducted a record check of Rick's background through the National Crime Information Center. -5- He learned Rick had one prior arrest for felonious assault, but no prior convictions of any kind. Rick was not "working off" any criminal cases, but was paid in cash for acting as an informant. The trial court denied the motion to reveal the identity of the confidential informant, but gave defense counsel the opportunity to interview the informant prior to trial. Rick, the informant, testified at trial but his true identity was not revealed. The case proceeded to a jury trial and the jury returned a verdict of guilty to the indictment. Lynn was sentenced to a term of 7 to 25 years with a mandatory term of 7 years incarceration. This appeal followed. In her first assignment of error, Lynn argues the trial court erred in not granting her motion for judgment of acquittal. A motion for judgment of acquittal under Crim.R. 29 should be denied and the issue presented to the jury if the evidence, when viewed in a light most favorable to the state, is of sufficient quantity that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Wolfe (1988), 51 Ohio App.3d 215, 216, citing State v. Bridgeman (1978), 55 Ohio St.2d 261. See, also, Jackson v. Virginia (1979), 433 U.S. 307, 319. Lynn's argument is premised upon this court's holding in State v. Taylor (Oct. 28, 1993), Cuyahoga App. No. 63848, unreported. In Taylor, this court held a defendant's mere presence in an apartment where drugs are found during a police raid does not alone constitute sufficient evidence of drug trafficking. Id. In -6- Taylor, the defendant was a neighbor from another apartment and happened to be visiting when the police arrived. Id. In this case, Lynn was more than a mere visitor to Room 226 in the Lakewood Manor Motel when she was arrested. While she was not registered as the occupant of the room, she played an active role in the drug transaction for which she was arrested. Lynn contacted Pryor to set up the transaction with Rick, she observed the negotiation and smoked crack cocaine during the course of the negotiations. She observed the actual exchange of cocaine for money between Pryor and Rick and even asked Rick to compensate her for setting up the transaction. All of these actions took place in Room 226 and in the presence of her two children. Thus, there was sufficient evidence Lynn was more than merely present, but was actually engaged in the drug transaction upon which her conviction is based. Accordingly, there was sufficient evidence in support of her conviction for drug trafficking. In her second assignment of error, Lynn argues the trial court erred in denying her motion for an order to reveal the identity of the informant. In Roviaro v. United States (1957), 353 U.S. 53, the Supreme Court of the United States established a balancing test for the scope of the "informer's privilege" to protect his identity. It "calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the -7- possible defenses, the possible significance of the informer's testimony, and other relevant factors." Id. at 62. The fundamental principle involved is the right of criminal defendants to confront their accusers by providing each of them with the opportunity to cross-examine the witnesses against them. State v. Williams (1983), 4 Ohio St.3d 74 at syllabus. In cases where the informant does not testify, the identity of the informant must be revealed if it 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. Id. at 75. However, "[i]n cases where an informant-witness will testify at trial, the name and address of the witness 'shall not be subject to disclosure if the prosecution attorney certifies to the court that to do so may subject the witness or others to physical or substantial economic harm or coercion.'" State v. Quintero (Mar. 1, 1990), Cuyahoga App. No. 56598, unreported, quoting Crim.R. 16(B)(1)(e). This court is now faced with the exact same issue that was addressed in Quintero. In Quintero, the informant-witness testified with anonymity, but was subject to thorough cross- examination by defense counsel and defense counsel was given an opportunity to interview the informant and review his statement prior to trial. On appeal, this court held the trial court did not err in prohibiting disclosure of the true name of the informant because defense counsel was afforded an opportunity to cross- examine the informant-witness and attack his credibility. Id. -8- In the present case, defense was afforded with the same opportunity and an evidentiary hearing was conducted to determine whether the informant was at risk of suffering physical harm. The trial court ruled the identity of the witness-informant would remain confidential, but afforded defense counsel an opportunity to interview him prior to trial. Although his true identity was not revealed, "Rick" testified and his testimony was subject to cross- examination. There was no evidence that would suggest revealing the identity of the informant would have assisted Lynn's defense. Therefore, Lynn was not deprived of her right to confront her accuser and was not denied a fair trial. In her third assignment of error, Lynn argues the trial court erred in the admission of state's Exhibits 2 through 7 because they were irrelevant, cumulative, and tended to cause confusion. "A trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence." Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271. Appellate review is limited to a determination of whether the lower court abused its discretion. E.g. Peters v. Ohio State Lottery Comm. (1992), 63 Ohio St.3d 296, 299. The term "abuse of discretion" connotes more than an error of law or judgment, it implies the court's attitude is unreasonable, arbitrary, or unconscionable. E.g. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. -9- Lynn's argument is premised upon Evid.R. 403. Evid.R. 403 provides as follows: (A) Exclusion mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. (B) Exclusion discretionary. Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence. In this case, the trier permitted a crack pipe, razor blade, chore boy, scissors, nail file, nail clippers, screwdriver, tissue paper, and Lynn's purse to be admitted into evidence. While admission of these items may not have been necessary to prove that Lynn was engaged in drug trafficking, they were probative in as much as they showed those items in Lynn's possession. Furthermore, there is no evidence that would tend to show the probative value of these exhibits was substantially outweighed by the danger of confusion of the issues or the needless presentation of cumulative evidence. Accordingly, the trial court did not abuse its discretion in the admission of state's Exhibits 2 through 7. Judgment affirmed. -10- 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JAMES D. SWEENEY, P.J., and TERRENCE O'DONNELL, 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- .