COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68581 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : WILLIAM BUTLER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MAY 23, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-312582 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PAUL MANCINO, JR., ESQ. Cuyahoga County Prosecutor 75 Public Square EDWARD O. PATTON, ESQ. Suite 1016 Assistant County Prosecutor Cleveland, Ohio 44113-2098 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -3- PATRICIA ANN BLACKMON, J.: William Butler, defendant-appellant, appeals a decision of the trial court convicting him of drug abuse. Butler assigns eight 1 errors for our review. Having reviewed the record of the proceed- ings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On June 27, 1994, Cleveland police officers received a radio broadcast from dispatch about a citizen complaint of drug activity in the area of E. 84th & Quincy Avenue. The broadcast included the description of a middle-aged black male wearing a black coat who was selling drugs out of a silver and black GMC mini-van. When the officers arrived at the scene, they spotted the van parked on the street. They inspected the van and found it unoccupied and locked. A license plate check revealed the van belonged to a woman named Ethel Richardson. The officers had their dispatcher contact Richardson. In response to the dispatcher's questions, Richardson said she owned the van, but it was in the control of her son, William Butler, defendant-appellant. Richardson was told police had received complaints about the van, and it would be towed unless she removed it. When Richardson said she did not have a ride to get to the scene, one of the officers left to pick her up and bring her to the van. Officer Miller remained at the scene in his cruiser, which was parked behind the van. A short time later, a man approached 1 See Appendix. -4- Miller's cruiser. He identified himself as the owner, William 2 Butler. Thereafter, Miller conducted a pat-down search of Butler. Miller asked to see Butler's driver's license. Butler gave the officer his license, and the officer ran a warrant check on Butler. The warrant check revealed no outstanding warrants, and Miller walked Butler over to the van. As they approached the van, Officer Kijauskas returned to the scene with Richardson. Butler unlocked the door of the van and opened it. Immediately thereafter he pointed to an object on the floorboard and said, "Hey those drugs ain't mine." Officer Miller bent down and spotted a transparent 35mm film case in plain view on the floorboard between the driver's side door and the front seat. Miller picked up the case and saw that there were four packets of suspected narcotics inside. (Tr. 123) Butler was arrested, handcuffed, and placed in Miller's patrol car. The packets were later tested and identified as heroin. Butler was charged with aggravated trafficking (heroin) and drug abuse (heroin). Both counts carried a violence specification. Butler filed a motion to suppress the heroin, maintaining that it was seized during an unlawful search of the van. At the suppres- sion hearing, Butler testified: After he gave his driver's license to Miller, Miller got out of his cruiser, patted Butler down, then placed him in the back of the cruiser. Miller then got back into 2 Miller testified that he conducted a pat down search of Butler. Though it is unclear exactly when he conducted the search, the implication is that it was conducted before the warrant check. -5- the front of the cruiser while he ran a warrant check on Butler. After the check was completed, Miller said "Let me see your keys." Miller then went to the van and opened the door which set off the van's burglar alarm. Miller came back to the car and asked Butler how to turn the alarm off. Miller turned the alarm off and returned to the van. A short time later, as Miller returned to his patrol car, Officer Kijauskas returned with Ms. Richardson. Miller told Kijauskas he found something in the van, and Butler was going to jail. Butler was then arrested. Two of Butler's friends testified that Butler was detained in the back of the patrol car while the van was searched. However, the trial court denied the motion to suppress, and the case proceeded to trial. Miller was acquitted on the drug trafficking count but convicted of drug abuse. This appeal followed. The issue raised by Butler's first assignment of error is whether the trial court erred in denying his motion to suppress. Butler asserts the police had no right to order Butler to produce his driver's license. We disagree. In State v. Cooper (1989), 61 Ohio App.3d 344,345, we held that a police request for identification is a consensual encounter that does not constitute a seizure under the Fourth Amendment. However, the encounter between Butler and the police was more than a request for identification. Although there was a dispute between the parties about whether Butler was placed in the patrol car while Miller conducted a warrant check, Miller admitted that he patted Butler down before conducting the check. In Terry v. Ohio -6- (1968), 392 U.S. 1,19, the Supreme Court found that Terry was "seized" and "searched" when a police officer took hold of him and patted down the outer surfaces of his clothing. Obviously, not all personal intercourse between policemen and citizens involves "seizures" of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred. We cannot tell with any certainty upon this record whether any such "seizure" took place here prior to Officer McFadden's initiation of physical contact for purposes of searching Terry for weapons, and we thus may assume that up to that point no intrusion upon constitu- tionally protected rights had occurred. Terry at 19, fn 16. Miller testified that, once his warrant check was completed, he was going to allow Butler to leave. According to Miller, he walked Butler to the van in order to make sure that Butler had the keys to the van. He stated that he decided to detain Butler only after he spotted the heroin. This testimony establishes Butler was not being detained by police at the time the heroin was spotted. Officer Miller saw the heroin in plain view on the van floor as Butler was preparing to leave. "[I]f contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no 'search' within the meaning of the Fourth Amendment at least no search independent of the initial intrusion that gave the officers their vantage point." Minnesota v. Dickerson (1993), ___ U.S. ___, 113 S.Ct. 2130,2137, 124 L.Ed.2d 334,345. -7- Butler argues the trial court should have granted his motion to suppress because the state failed to introduce any evidence to substantiate the radio broadcast that brought the police to the area. Officer Miller testified the radio broadcast was based on an anonymous phone tip received by police. In some instances, an anonymous phone tip has been found to carry sufficient indicia of reliability to justify an investigative stop even if the tip could not support an arrest or a search warrant. State v. Wilson (1991), 77 Ohio App.3d 718,720-721 [citing Adams v. Williams (1972), 407 U.S. 143,147, 92 S.Ct. 1921, 32 L.Ed.2d 612]. In Alabama v. White (1990), 496 U.S. 325, the Supreme Court applied the "totality of the circumstances" test from Illinois v. Gates (1983), 462 U.S. 213,230, 103 S.Ct. 2317,2328, 76 L.Ed.2d 527 for evaluating an informant's tip. Relevant factors for determining the reliability of an informant's tip include the informant's veracity, reliabil- ity, and basis of knowledge. White at 328-329, 110 S.Ct. at 2415- 2416, 110 L.Ed.2d at 308. In Wilson, the police received an anonymous phone tip that a male in a red Mustang had been involved in a shooting. The tip included information about where police could find the car. When the police went to the location described by the caller, they observed a red Mustang that fit the description given by the anonymous caller. The court held that the anonymous phone tip, corroborated by the observations of the officers on the scene, gave police reasonable suspicion of criminal activity to justify an investigative stop of the car. -8- In this case, the anonymous caller gave police a description of Butler, his clothing, and his van. When police arrived at the location provided by the caller, they found a vehicle matching the description given by the caller. When Butler approached the police vehicle, he matched the caller's description exactly. The officers described the location of the van as an area where heroin sales were prevalent. Under the totality of the circumstances, we find that the officers were justified in stopping Butler. Butler's first assignment of error is without merit. In his second assignment of error, Butler argues the trial court erred in permitting trial testimony about the unsubstantiated police broadcast. Butler claims such testimony constituted hearsay and was never verified. As discussed in our evaluation of Butler's first assignment of error, we find the broadcast was sufficiently reliable to justify the investigative stop in this case. Butler's second assignment of error is overruled. Butler also asserts the trial court improperly allowed evidence that Butler had a drug problem. At trial, Butler's mother was asked if she told police that Butler had a drug problem. Butler's mother denied making such a statement. On rebuttal, the state produced the testimony of Officer Kijauskas who stated Richardson told him her son had a drug problem. Butler argues the testimony was improper character evidence under Evid.R. 404(B), which prohibits the admission of evidence of a person's other crimes, wrongs, or acts to prove his character and to show that he acted in conformity therewith. The state argues the evidence was -9- proper under Evid.R. 613(A) and (B). Both Evid.R. 613(A) and (B) allow for examination of a witness concerning a prior statement made by him and allow the admission of extrinsic evidence of such statement once it is denied by the witness. The decision whether to admit extrinsic evidence of a witness' prior inconsistent statement is a matter within the discretion of the trial court when such statement is collateral to the issue being tried and used to attack the credibility of a witness. State v. Cobb (1991), 81 Ohio App.3d 179,184. The jury had the responsibility to evaluate Ms. Richardson's credibility as a witness in the case. We find no abuse of discretion in the court's decision to admit extrinsic evidence of a prior statement by Ms. Richardson which was inconsistent with her in-court testimony. Butler's third assignment of error is overruled. In his fourth assignment of error, Butler argues the trial court improperly allowed the prosecutor to ask a defense witness whether he had ever been convicted of a state or federal offense. Under Evid.R. 609(A)(1), convictions may be used for impeachment purposes only if they are punishable by death or imprisonment in excess of one year. However such convictions are only admissible if less than ten years has elapsed since the date of conviction, release from confinement, termination of probation, shock probation or parole, whichever is later. Evid.R. 609(B). Butler argues the court erred in allowing the prosecutor to ask about the witness' prior convictions without limiting them to those occurring within the last ten years. -10- Under Evid.R. 609(B), a prosecutor may impeach a witness with convictions that are more than ten years old if he demonstrates that the probative value of the conviction substantially outweighs its prejudicial effect. Accordingly, a prosecutor's question to a witness about his prior convictions is not improper solely because it failed to limit the inquiry to those convictions which are less than ten years old. In this case, Butler does not argue that the witness' convictions occurred more than ten years ago. If that was the case, Butler's trial counsel had every opportunity to bring that information to the court's attention at trial in order to compel the state to make the requisite showing under Evid.R. 609(B). Butler's fourth assignment of error is overruled. In his fifth assignment of error, Butler argues improper argument by the prosecutor denied him a fair trial. A conviction may be reversed due to prosecutorial misconduct if it is determined that the prosecutor's remarks were improper and the remarks had a prejudicial effect on substantial rights of the defendant. State v. Williams (1995), 73 Ohio St.3d 153,168-169. A new trial will be ordered only where the outcome of the trial would clearly have been different but for the alleged misconduct. See State v. Hill (July 23, 1992), Cuyahoga App. No. 60700, unreported at 17. Butler claims the prosecutor improperly invited the jury to put themselves in the position of the parties and to evaluate Butler based on his past history. Butler's objections to the challenged comments were sustained at trial. During its final instructions to the jury, the trial court told them "statements or -11- answers that were stricken by this Court and which you were instructed to disregard are not evidence and must be treated as though you never heard them." The trial court also instructed the jury that the final arguments of the parties were not evidence. Although improper, when viewed in the context of the entire trial, we find the challenged statements were not so egregious as to necessitate a new trial. Butler's fifth assignment of error is overruled. Butler next argues the trial court erred in its answer to a question asked by the jury during deliberations. The jury contacted the court to ask the following question about completing the jury form on the prior violence specification count: Under what circumstances would we complete the sentence with "was not"? The court responded by informing the jury that: The sentence would be completed with "was not" if the State failed to prove beyond a reasonable doubt the prior conviction. In this case, there was a stipulation of fact between the State of Ohio & defense counsel regarding the prior conviction. At the time the stipulation was read to the jury, the trial court told the jury, without objection, that "a stipulation is a fact or facts agreed to by and between the parties." In response to the jury's question, the trial court reminded the jury that the parties had reached a stipulation of fact about the prior conviction. However, the court made no statement about the nature of the stipulation that could be interpreted as directing the jury to a specific finding of fact with respect to the prior conviction. -12- In addition, Butler's trial counsel agreed to the language used in the court's response to the jury question. Butler's sixth assignment of error is without merit. Butler next argues the trial court erred in denying his motion for acquittal. A motion for acquittal under Crim.R. 29 should be granted only when reasonable minds could reach different conclusions about whether each element of a crime has been proved beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261. When reviewing a motion for judgment of acquittal, the trial court must construe the evidence most strongly in favor of the state. State v. Fyffe (1990), 67 Ohio App.3d 608,613. In this case, the state presented evidence by two veteran police officers that heroin was found on the floor of a van, which was within Butler's exclusive control. A defendant may be found to be in constructive possession of an item if the evidence shows that he was able to exercise dominion or control over the item. State v. Barr (1993), 86 Ohio App.3d 227,235. The evidence presented in this case established that Butler had constructive possession of the heroin found in his van. This evidence, if believed, was sufficient to prove the crime of drug abuse. Butler's seventh assignment of error is overruled. Finally, Butler argues his conviction was against the manifest weight of the evidence. A verdict will not be reversed as against the manifest weight of the evidence unless the court, after reviewing the entire record, weighing the evidence and all reasonable inferences, and considering the credibility of -13- witnesses, finds that the jury clearly lost its way in resolving the conflicts in the evidence 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 172,175. The evidence presented by the state included the testimony of two experienced police officers who testified that heroin was found in Butler's van. The fact that defense witnesses presented contradictory testimony about the circumstance under which the heroin was found does not, in and of itself, render the police officers' testimony incredible. It is the responsibility of the jury to resolve the conflicts in the evidence. "The choice between credible witnesses and their conflicting testimony rests solely with the finder of fact and an appellate court may not substitute its own judgment for that of the finder of fact." State v. Callihan (1992), 80 Ohio App.3d 184,192. We conclude the jury did not lose its way in resolving the conflicting testimony. Accordingly, we overrule Butler's eighth assignment of error. Judgment 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. PORTER, J., and O'DONNELL, J., CONCUR. PATRICIA ANN BLACKMON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. -15- APPENDIX I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION TO SUPPRESS. II. DEFENDANT WAS DENIED DUE PROCESS AND A FAIR TRIAL WHEN THE COURT PERMITTED A POLICE OFFICER TO RELATE TO THE JURY AN UNSUBSTANTIATED POLICE RADIO AND DISPATCH CALL AND THE CONTENTS OF THAT CALL. III. DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT PERMITTED CHARACTER EVIDENCE CONCERNING THE DRUG PROBLEM OF THE DEFENDANT AND FURTHER PERMITTING THE PROSECUTION TO OFFER REBUTTAL EVIDENCE ON A COLLATERAL MATTER. IV. DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT PERMITTED CROSS-EXAMINATION OF A DEFENSE WITNESS CONCERNING PRIOR CONVICTIONS. V. DEFENDANT WAS DENIED A FAIR TRIAL BY REASON OF IMPROPER ARGUMENT BY THE PROSECUTOR. VI. DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT, IN ANSWERING A QUESTION FROM THE JURY, COMMENTED ON THE EVIDENCE, THUS USURPING THE FUNCTION OF THE JURY. VII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION FOR JUDGMENT OF ACQUITTAL. VIII. THE COURT ERRED IN NOT GRANTING A JUDGMENT OF OF (sic) .