COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68544 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION TONY BURSON : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 1, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-308195 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. ANTHONY A. COX, ESQ. CUYAHOGA COUNTY PROSECUTOR P.O. Box 6002 BY: DAVID SHELDON, ESQ. Hudson, Ohio 44236 ASSISTANT COUNTY PROSECUTOR The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant-appellant Tony Burson, appeals his conviction for two counts of Trafficking in cocaine in violation of R.C. 2925.03(A)(2) and R.C. 2925.03(A)(6) and one count of Possessing criminal tools to wit., $385 in violation of R.C. 2923.24. Appellant claims the trial court erred by convicting him on both counts of trafficking where the conduct underlying his indictment involved allied offenses of similar import; by permitting cross-examination with respect to a stipulated, prior drug conviction; by failing to provide him with a speedy trial and by convicting him of possession of criminal tools where such conviction was against the manifest weight of the evidence. Upon review we find appellant has failed to establish reversible error. Hence, we affirm his convictions. On March 6, 1994 Detectives Frick and Flint, Second Division Strike Force, established a surveillance detail on the top floor of 1 Lakeview Towers which overlooked West 28th and Division Streets. Detective Frick testified that with the aid of binoculars, he observed appellant's accomplice, Allen Moreland, pace back and forth at this intersection until a vehicle stopped at which time Moreland leaned into the vehicle and engaged the occupant in conversation. He stated that he then saw Moreland proceed down the street where appellant emerged from between two buildings and produced a plastic baggie. Frick stated that he saw the appellant 1 Management requested assistance due to suspected drug sale activity. - 3 - remove several small objects from the baggie and give them to Moreland who gave them to the occupant of the car in return for paper money which Moreland gave to the appellant. Frick further testified to what he believed to be a second crack cocaine sale completed by appellant and Moreland. These activities took place at approximately 1:50 a.m. Detective Flint corroborated his partner's testimony and stated that the appellant produced a large bag of what appeared to be rock cocaine and that the whiteness of the cocaine stood out against the darkness because the appellant was dressed entirely in black. He also stated that he saw the appellant produce a "wad" of money to which he added the money given to him by Moreland. (Tr.297) The detectives testified that they believed they had probable cause to arrest both suspects and communicated same to support officers below. Detective Flint testified that he was dressed in plain clothes and that when he approached the appellant, the appellant began to walk and then run. Flint stated that the appellant eluded him but threw down two rocks of cocaine and tossed a plastic bag containing 84 pieces of same over a fence as he ran. Officer Smith apprehended the appellant and Detective Frick searched the appellant immediately after his arrest and confiscated 2 one rock of cocaine and $385 from his coat and pants pocket. 2 The above-cited drugs were confiscated, entered into evidence and identified as cocaine by the county's scientific examiner. - 4 - Appellant, age 22, testified that he went to Lakeview Towers at approximately 1:00 a.m. to smoke crack cocaine with a resident, one Dawn Willis. He stated that he knocked on her apartment window without avail and that he ran from police because he was violating probation by having 4 rocks of cocaine on his person. He testified that he pled guilty to a prior drug conviction but denied engaging in any trafficking transactions with Allen Moreland. On cross- examination appellant admitted that he did not live in the Lakeview Towers area and that he had to take two buses to get there. He stated that he went to the towers to smoke cocaine but admitted that he had no "stem" or smoking utensil on him when he was arrested. Appellant denied frequenting the area and denied being familiar with the neighborhood. On further cross-examination however, he admitted to pleading guilty to one count of preparation to distribute cocaine after being arrested in the Lakeview Tower area less than fifteen months ago. Dawn Willis, age 20, testified that she lived on Division Street, that she grew up with appellant and that they frequently used cocaine together. On cross-examination, she admitted that appellant did not live in the area; that a substantial amount of drug use took place at Lakeview Towers and that appellant frequently brought cocaine to her. She denied that he was her supplier. Allen Moreland admitted to pleading guilty to trafficking as a result of his arrest but denied doing so with the appellant. Appellant was found guilty. This appeal followed. - 5 - I IT WAS ERROR TO CONVICT APPELLANT OF CHARGES UNDER R.C. 2925.03(A)(2) AND R.C. 2925.03(A)(6) SINCE THE CONDUCT INVOLVED ALLIED OFFENSES OF SIMILAR IMPORT AND CONVICTION UNDER BOTH COUNTS VIOLATED R.C. 2941.25(A). In his first assignment of error, appellant claims that he was convicted of two similar offenses in violation of R.C. 2941.25(A). Appellant's argument is devoid of merit as it is well established that R.C. 2925.03(A)(2) (preparation for distribution) and R.C. 2925.03(A)(6) (possession) are not allied offenses of similar import as R.C. 2925.03(A)(2) imposes an additional element to wit., 3 possession incident to preparation for shipment or distribution. 3 R.C. 2925.03: (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; (6) Possess a controlled substance in an amount equal to or exceeding three times the bulk amount, but in an amount less than one hundred times that amount; R.C. 2941.25: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct - 6 - See, State v. Powell (1993), 87 Ohio App.3d 157, State v. Jordan (1992) 73 Ohio App.3d 524 and State v. Robertson (January 19, 1995) Cuyahoga App. No 64956, unreported. Moreover, overwhelming evidence was presented by the State that appellant not only possessed cocaine but possessed it for the purpose of selling it. His first assignment of error is overruled. II IT WAS ERROR FOR THE TRIAL COURT TO PERMIT EXTENDED CROSS EXAMINATION OF APPELLANT AS TO A PRIOR ARREST WHEN A PRIOR DRUG CONVICTION HAD BEEN STIPULATED BY THE DEFENSE. In his second assignment of error, appellant claims that the court committed reversible error by permitting the prosecutor to cross-examine him with respect to the details of a prior drug conviction. Appellant's argument is unpersuasive as the record demonstrates that such cross-examination was employed to impeach the appellant after he repeatedly denied being familiar with the area. See, Evid. R. 608(B). While the appellant admitted pleading guilty to preparation for shipment as a result of the cross- examination, we do not find such admission to be prejudicial as the state presented overwhelming evidence that appellant traveled to Lakeview Towers to sell cocaine not merely to use it. Hence, constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. - 7 - despite appellant's admission, the result of his trial would not have been otherwise. His second assignment of error is overruled. III APPELLANT'S RIGHT TO A SPEEDY TRIAL UNDER R.C. 2945.71 WAS VIOLATED. Appellant's third assignment of error is devoid of merit as R.C. 2945.72(D) Extension of time for hearing or trial provides in relevant part that "the period within which an accused must be brought to trial" ... "may be extended... by" ... "[a]ny period of delay occasioned by the neglect or improper act of the accused." Appointed counsel testified that appellant was extremely uncooperative; that he would not speak to him regarding discovery matters; that he would not comment on the evidence the state planned to present and that he would not comment on a proposed 4 witness list. Contrary to appellant's assertions, the record demonstrates that counsel attempted to represent appellant in a zealous manner and filed requisite discovery and suppression motions on a timely basis. Hence, the delay associated with appellant's trial was occasioned by his own improper conduct. His third assignment of error is overruled. IV APPELLANT'S CONVICTION UNDER R.C. 2923.24 OF "POSSESSION OF A CRIMINAL TOOL" TO WIT: $385 CASH WAS NOT SUSTAINED BY THE WEIGHT OF THE EVIDENCE. 4 As a result, counsel petitioned the court to be relieved from representation. - 8 - Appellant's fourth assignment of error is devoid of merit as R.C. 2923.24 provides that: (A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally. (B) Each of the following constitute prima-facie evidence of criminal purpose: (1) Possession or control of any dangerous ordnance, or the materials or parts for making dangerous ordnance, in the absence of circumstances indicating such dangerous ordnance, materials, or parts are intended for legitimate use; (underlined for emphasis) The record demonstrates that appellant had been observed selling what appeared to be a large amount of cocaine in a high drug usage area in the middle of the night. The record further demonstrates that Allen Moreland handed money to the appellant after two such sales were completed and that appellant added these monies to a "wad" of money he already possessed. The record also demonstrates that appellant fled when he was pursued; that he threw down two rocks of cocaine as he ran and that he had one rock on his person when the $385 was confiscated. Hence, the $385 was found on appellant's person in the absence of circumstances indicating an intent for legitimate use. Appellant's conviction on this count was not against the manifest weight of the evidence. His fourth assignment of error is overruled. The judgment of the trial court is affirmed. - 9 - 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. BLACKMON, P.J., AND HARPER, J., CONCUR. ANN DYKE JUDGE 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, .