COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68424 STATE OF OHIO, : : : Plaintiff-Appellee : JOURNAL ENTRY : v. : AND : : OPINION KEVIN WHITE, : : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 4, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-311684. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Francine Goldberg Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: John T. Castele 75 Public Square, Suite 1320 Cleveland, Ohio 44113-2096 - 2 - NAHRA, P.J.: Appellant, Kevin White, is appealing his conviction for possession of cocaine, drug trafficking and possession of criminal tools. For the following reasons, we affirm. At the suppression hearing prior to trial and at trial, Detective Timothy Gaertner of the Cleveland Police Department Narcotics Unit testified as follows: Around 3:30 p.m., a confidential reliable informant ("CRI"), who had provided accurate information in the past, telephoned Gaertner. The CRI said he had placed an order for $500 of crack with a male named Kevin. Kevin lived at 875 Eloise in Cleveland Heights. The CRI arranged to meet Kevin at the BP station at East 152nd and South Marginal Road. Kevin would be driving a blue Oldsmobile 98, and would be accompanied by a tall, skinny black male with "funny looking teeth." A phone call would be made from the gas station to inform the CRI that Kevin had arrived at the station. At 4:00 p.m., the police set up a surveillance around the BP station. Detective Gaertner was parked on Marginal Road in an unmarked car. At 4:30 p.m., Gaertner saw two males in a blue Oldsmobile 98 pull into the BP station. The passenger exited the car while the driver remained in the car. Through his binoculars, Gaertner observed that the passenger was a tall, skinny black male with deformed teeth. The passenger went to a pay phone and appeared to page someone. - 3 - A license check of the blue Oldsmobile revealed that the car was registered to Kevin White, whose address was 875 Eloise. Sergeant Gercar radioed an order for the detectives to move in. A marked police car pulled up to the pay phone. At that point, Gaertner observed appellant, the driver of the car, reaching under the dashboard. Gaertner warned the other officers over the radio that White was reaching under the dash. An unmarked police car, driven by Detective Sampson, pulled in behind appellant's car. Detective Gaertner ran over to the BP station to assist the other officers. At trial and at the suppression hearing, Detective Jeff Sampson testified that he pulled his car behind appellant's car. He exited his vehicle and approached the driver's side of appellant's vehicle. Sampson saw appellant leaning down and reaching up under the dash. He ordered appellant to remove his hands from the dash and exit the vehicle. Appellant exited from the passenger door and another officer took appellant into custody. Detective Sampson could not see any contraband from outside the car. When he entered the car and looked under the dashboard, he saw a clear plastic bag sticking out from under the dash. Rocks of crack cocaine were visible in the bag. Sampson removed the bag from the dash. It contained 43 rocks of crack cocaine. Detective Gaertner testified that he also observed the bag of crack hanging down from the dash shortly after appellant was taken into custody. - 4 - Detective Gaertner testified at the trial that immediately after the arrest, the police officers proceeded to 875 Eloise in hopes of obtaining a consent search of the home. Appellant's mother refused to give consent to search and told the police her son had moved out several months ago. Detective Sampson testified at trial that there were two plastic bags contained in one bag, and each of the three bags contained rocks of crack. The number of rocks and size of the rocks indicated the rocks were for sale, not personal use. The value of the drugs was over $800. The bag of drugs was not shown to appellant's mother when the detectives went to the mother's home. A pager was found on appellant's person. Sampson stated that pagers are typically used for drug transactions. The appellant testified at the suppression hearing and the trial as follows: Appellant was on his way to the mall to pick up his tuxedo for the prom. He was having problems with his brakes. Appellant's friend, James Garrett, accompanied appellant because Garrett was a mechanic and could help if the brakes failed. Appellant's brakes started failing, so he pulled into the BP station at 4:30 p.m. Appellant got out of the car and purchased brake fluid at the BP station and put the brake fluid in his car. Appellant was about to leave when Garrett decided he needed to make a phone call. - 5 - Garrett got out to make a phone call and then the police pulled into the station. Appellant never had his hands under the dashboard. The police pulled him out of the car and took away the gold chain he was wearing. As he was sitting in the police car, the police waived a bag of drugs in front of him and said they found it in his car. At trial, appellant testified that the bag the police waived in front of him was the same bag that was in evidence. Appellant stated he did not know how the drugs got in his car. On cross- examination, appellant stated he had never seen crack cocaine before, except on T.V. He stated he had a pager because it was a fad and he used it to communicate with friends. Appellant admitted to making a written statement to a police officer earlier that year in which he admitted to being a drug dealer and using a pager for drug deals. Appellant said the police coerced him into making this statement. The jury was instructed to consider the prior written statement only in regard to appellant's credibility, and not as proof appellant acted in conformity therewith. Appellant's grandmother testified at trial that when the police came to 875 Eloise, they were permitted to search the room that appellant had occupied there. The police showed a baggy of drugs and said they found the drugs on appellant. Kevin's mother, Gloria Jones, gave similar testimony. Ms. Jones stated that the baggy shown to her by the police was a Ziplock pint-size bag, and it did not look like any of the bags in evidence. - 6 - I. Appellant's first assignment of error states: THE TRIAL COURT ERRED BY FAILING TO DISCLOSE THE IDENTITY OF THE CONFIDENTIAL INFORMANT ALLEGEDLY USED BY POLICE, THEREBY VIOLATING THE APPELLANT'S CONSTITUTIONAL RIGHT TO CONFRONT WITNESS'S (SIC) AGAINST HIM. The identity of an informant must be revealed to a criminal defendant 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. State v. Williams (1983), 4 Ohio St.3d 74, syllabus. The defendant must show the informant's testimony would be helpful in his defense. State v. Butler (1984), 9 Ohio St.3d 156, State v. Brown (1992), 64 Ohio St.3d 649. Disclosure of the informant's identity is not required for purposes of a suppression hearing. State v. Williams (1994), 97 Ohio App.3d 289. If the informant's involvement was limited to providing information relevant to probable cause to search, disclosure of the informant's identity is not required. State v. Parsons (1989), 64 Ohio App.3d 63, citing United States v. Raddatz (1980), 447 U.S. 667, 679, 100 S.Ct. 2406, 2414, 65 L.Ed.2d 424, 435. Here, the testimony of the CRI was used to establish probable cause. The CRI's testimony was not vital in establishing any of the elements of the charged offenses. The police officers observed appellant making furtive movements under the dashboard, and subsequently discovered crack cocaine under the dashboard. The - 7 - automobile was in the ownership and control of appellant. This evidence established appellant knowingly possessed cocaine. See R.C. 2925.03(A)(4). The quantity and size of the rocks proved the rocks were intended for sale. The rocks were transported in appellant's car, proving drug trafficking. See R.C. 2925.03(A)(2). The discovery of the cocaine proved the pager and automobile were used as criminal tools. See R.C. 2923.24. The observation of the police officers established the essential elements of the crimes, and the testimony of the CRI was not required. The appellant has failed to show how the identity of the CRI would be useful in his defense. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED BY OVERRULING APPELLANT'S MOTION TO SUPPRESS EVIDENCE. Appellant contends the police did not have probable cause to arrest him or search his car. A warrantless search of an automobile is not unreasonable within the meaning of the Fourth Amendment, if the officer has probable cause to believe the vehicle contains contraband. Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, State v. Welch (1985), 18 Ohio St.3d 88, 91. Similarly, a warrantless arrest may be made if the arresting officer had probable cause to believe the accused had committed a felony. State v. Timson (1974), 38 Ohio St.2d 122. - 8 - Probable cause exists when the officer has reasonably trustworthy information sufficient to warrant a prudent person in believing a crime was being committed. Adams v. Williams (1972), 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612. To determine whether probable cause existed, the court must examine the totality of the circumstances. Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. An informant's tip that the suspect is engaged in criminal activity, plus corroboration of the details of the tip by police observation, may establish probable cause. Id, State v. Welch, supra. If the tip predicts the suspect's future behavior, and the suspect is observed acting in conformance with the tip, it is reasonable for the police to find the tip reliable and believe the suspect was engaged in criminal activity. Id. Whether the informant was known to the police and provided accurate information in the past is also a factor in determining whether a prudent person would rely on the tip. Alabama v. White (1990), 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301. In this case, the tipster was a person known to the police, who had provided reliable information in the past. The CRI predicted the time and place appellant would appear to make a drug sale and who appellant would be with. The CRI knew appellant's former address and knew that a call would be placed to the CRI upon appellant's arrival at the gas station. All of this information was verified by police observation. The police also observed appellant making furtive movements under the dashboard when - 9 - appellant saw the police car. The police had reasonable trustworthy information sufficient to warrant a prudent person to believe appellant was engaged in criminal activity and had contraband in his car. Probable cause existed for the arrest of appellant and search of appellant's car. Accordingly, this assignment of error is overruled. III. Appellant's third assignment of error states: APPELLANT'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In determining if a conviction is against the manifest weight of the evidence, the appellate court reviews the record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172, quoting Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652. The court should consider whether the evidence is credible or incredible, contradicted or uncontradicted, reliable and unreliable, certain or uncertain, whether a witness was impeached and whether a witness' testimony was self-serving. State v. Mattison (1985), 23 Ohio App.3d 10. A reviewing court will not reverse a jury verdict where there is substantial, competent and credible evidence upon which a jury could conclude that all of the elements of the offense have been proven beyond a - 10 - reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, Martin, supra. As mentioned in the first assignment of error, above, the testimony of the police officers proved all of the elements of the charged offenses. Appellant contends that the officers were not credible witnesses. Appellant points out several inconsistencies in the officer's testimony. At the suppression hearing, Detective Gaertner testified the informant said Kevin White would phone the informant, but at trial, Gaertner said James Garnett would call the informant. Gaertner's testimony from the suppression hearing is ambiguous and reads as follows, ". . . once Kevin would get to the gas station he would call us on the telephone." (Emphasis added.) At the suppression hearing, the detectives mentioned only one baggy with drugs, when the baggy entered into evidence at trial contained two more bags. Appellant's mother said the bag she was shown was not the bag in evidence. However, appellant himself testified that the bag he was shown upon arrest was the bag in evidence, containing the two other bags. Detective Sampson testified at trial that a gold chain was taken from appellant, but at the suppression hearing stated that he personally did not take the gold chain. Detective Gaertner testified that he did not observe anyone take a gold chain from appellant. This testimony was not inconsistent. The detectives testified they did not search the premises at 875 Eloise, but appellant's mother and grandmother stated they did - 11 - search appellant's old room. Despite this inconsistency, the jury did not lose its way in finding the testimony of detectives credible as to the essential elements of the offenses. The credibility of witnesses is primarily for the trier of facts. State v. DeHass (1967), 10 Ohio St.2d 230. Examining the Mattison factors, the detectives' testimony was, for the most part, consistent, and was not impeached. Appellant's mother and grandmother had an interest in testifying. Appellant's testimony contained numerous contradictions and appellant was impeached by his prior written statement. The jury could reasonably find the detectives' testimony credible. There was substantial, competent and credible evidence from which the jury could find all of the elements of the offenses prior beyond a reasonable doubt. Accordingly, this assignment of error is overruled. IV. Appellant's fourth assignment of error states: APPELLANT CANNOT BE CONVICTED AND SENTENCED ON ALLIED OFFENSES OF SIMILAR IMPORT. Appellant contends that drug possession in an amount greater than the bulk amount, R.C. 2925.03(A)(4) and preparation for shipment, shipment, transportation, delivery or preparation for distribution of a controlled substance when the offender knows or has reason to believe the controlled substance is intended for sale, R.C. 2925.03(A)(2) are allied offenses of similar import. Appellant failed to object to the convictions at trial, and thus waived any error. State v. Comen (1990), 50 Ohio St.3d 206, 211. - 12 - Plain error does not exist because this court has held that R.C. 2925.03(A)(4) and R.C. 2925.03(A)(2) are not allied offenses of similar import. State v. Jordan (1992), 73 Ohio App.3d 524. Although there is conflicting case law in this County, State v. Robinson (March 3, 1994), Cuyahoga App. No. 64734, unreported, State v. Benson (August 20, 1992), Cuyahoga App. No. 60945, unreported, we are bound to follow the reported precedent from this district. S.Ct.R. Rep. Op. 2(G)(2), State v. Roberson (Jan. 19, 1995), Cuyahoga App. No. 64956, unreported. Appellant argues that State v. Roberts (1980), 62 Ohio St.2d 170, is controlling. That case is distinguishable because it dealt with whether R.C. 3719.20(A), "possession for sale," and R.C. 3719.20(B), "drug sale," were allied offenses of similar import. Accordingly, this assignment of error is overruled. V. Appellant's fifth assignment of error states: APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL. Appellant asserts his counsel was ineffective for failing to object to appellant's being convicted of allied offenses of similar import. If any error existed in this regard, it could not have prejudiced appellant. Appellant was not convicted of allied offenses of similar import, as discussed above. No prejudice resulted from the alleged error, so appellant's counsel was not ineffective. See Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. - 13 - Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. - 14 - 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. KARPINSKI, J., and McMONAGLE, TIMOTHY, E., J., CONCUR. JOSEPH J. NAHRA PRESIDING 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 journalization, at which time .