COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68804 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION ANDRE ROBINSON : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 18, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-316916. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Louis J. Brodnik Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Laurence R. Snyder, Esq. Snyder Associates One Erieview Plaza, Suite 450 Cleveland, Ohio 44114 SWEENEY, JAMES D., J.: Defendant Andre Robinson appeals from his convictions for one count of possession of cocaine over the bulk amount in violation of R.C. 2925.03(A)(4) and one count of transportation of cocaine R.C. 2925.03(A)(2). The appellant was sentenced to a term of incarceration of five to fifteen years, with three years of actual incarceration on count one, and a term of two to fifteen years on count two. The sentences were ordered to be served consecutively. On October 12, 1994, the appellant was stopped for speeding by Cleveland Police Officer Carl Walker. Officer Walker testified that he observed the appellant travelling westbound on Wade Park, where the speed limit is 25 m.p.h., at a high rate of speed. With his dash-mounted radar unit, Officer Walker clocked the appellant's rate of speed as 42 m.p.h. As Officer Walker pulled the speeding car over at East 71st Street he observed the appellant make a movement towards the visor. There were two people in the car, the appellant was the driver and his daughter the passenger. When Officer Walker asked the appellant for identification, the appellant responded that he had none. The appellant had no driver's license and could remember neither his social security number nor his date of birth. The appellant did supply the officer with the car registration and stated that the vehicle belonged to his girlfriend. The name the appellant gave to Officer Walker was Kevin Robinson. - 3 - Officer Walker testified that the appellant's answers were vague and evasive. The appellant was placed under arrest because there was no possibility of verifying the information given by the appellant. The appellant was directed to step out of the vehicle and Officer Walker performed a cursory pat-down for weapons. No weapons were found. The appellant was handcuffed and taken to the patrol car. At this time Officer Walker performed a more extensive search. In the appellant's right front pants pocket the officer "felt a rolled up object with what [he] knew or felt to be rock cocaine." (T. 153.) Officer Walker testified that he is experienced in drug arrests because he spent approximately four years in the undercover narcotics unit and because he previously worked with the vice squad. When Officer Walker pulled out the object from the appellant's pants, he found numerous rocks of cocaine in a small plastic baggie which was tightly rolled. As Officer Walker pulled the cocaine out, the passenger door of the appellant's car opened. Officer Walker immediately told the passenger to remain where she was. At this time the officer felt it necessary to secure the passenger for his own safety. He placed the plastic bag back in the appellant's pants pocket and placed him in the front passenger seat of the patrol car. Officer Walker fastened the seat-belt around the appellant. The appellant was placed into the patrol - 4 - car's front seat because Officer Walker is a member of the K-9 unit. The rear seat of his vehicle contains the dog kennel. Officer Walker then walked back to the appellant's vehicle and spoke to the passenger for approximately 45 seconds. While Officer Walker was speaking to the appellant's daughter he observed the appellant raise himself up in the front seat of the patrol car. The appellant appeared to be pushing against the floorboards and using leverage on the rear of the seat to raise his body. When Officer Walker returned to the patrol car he unbelted the appellant and removed him from the vehicle. Once again the appellant was searched. Officer Walker discovered that the cocaine was missing from the appellant's pants pocket. When asked where the cocaine was the appellant responded that he had passed it off (T. 161). After a search the cocaine was found in the crack between the back and the bottom of the seat. When the appellant's vehicle was searched in order to be towed, a pager was found over the visor. The appellant was carrying $345 in cash. The appellant was extremely polite and courteous throughout the entire incident, as was his daughter. The appellant denied that the drugs were his and asked that he not be arrested in connection with the cocaine. At the booking window the appellant stated "I don't know where you got that from. You won't be able to prove it." (T. 186.) Officer Walker testified that the first time he met the appellant was at the time of arrest. - 5 - Cynthia Lewis of the Scientific Investigation Unit testified that she was given the plastic baggie. The baggie taken from the appellant contained 53 rocks of crack cocaine which weighed 13.67 grams. This amount is over the bulk amount, but is less than three times the bulk amount. Andre Robinson testified on his own behalf. He stated that he pulled over on East 71st Street when he noticed the police car behind him. When the officer informed him that he was speeding, the appellant argued that he was not. He refused to give the officer his driver's license because he had done nothing wrong. When asked again for his license the appellant told the officer that he left it at home. The appellant admitted that he gave the officer a false name and offered as an explanation the fact that his license plates were expired. The appellant testified that when the officer first ordered him to exit his vehicle he refused. Once he finally complied, he was placed under arrest. He became angry and began to cuss at the officer. He cussed the entire time the officer was placing him in the patrol vehicle. The officer returned to the appellant's vehicle for five or ten seconds. Upon his return to the patrol car, the officer pulled a blastic bag from his own pocket and stated that it belonged to the appellant. The appellant stated to the officer "Don't do this to me." and "Whatever that is, it don't belong to me." (T. 218.) The appellant testified that he had no cocaine in his pocket. - 6 - The appellant sets forth two assignments of error. The first assignment of error: I THE LOWER COURT ERRED WHEN IT ALLOWED THE PROSECUTOR TO MAKE IMPROPER REMARKS DURING TRIAL AND CLOSING ARGUMENTS WHICH PREJUDICIALLY AFFECTED SUBSTANTIAL RIGHTS OF THE DEFENDANT. The appellant argues that prosecutorial misconduct occurring during the closing argument was of such magnitude as to deprive the appellant of a fair trial. In State v. Mann (1993), 93 Ohio App.3d 301, 312, this court held: In State v. Hill (1977), 52 Ohio App.2d 393, 6 O.O.3d 436, 370 N.E.2d 775, the court set out four elements to be considered in determining whether the prosecutor's statements amount to misconduct: (1) the nature of the remarks; (2) whether an objection was made by opposing counsel; (3) whether corrective instructions were given; and (4) the strength of the evidence against the defendant. Another factor to be considered in determining whether remarks constitute misconduct is whether the remarks prejudicially affected substantial rights of the defendant. State v. Smith (1984), 14 Ohio St.3d 13, 14, 14 OBR 317, 318, 470 N.E.2d 883, 885. In addition, the prosecutor is normally entitled to a certain degree of latitude in closing arguments. State v. Smith (1984), 14 Ohio St.3d 13. Closing arguments must be viewed in their entirety to determine whether the remarks were prejudicial. Mann, supra, citing to State v. Burgun (1978), 56 Ohio St.2d 354. - 7 - The Supreme Court in State v. Keenan (1993), 66 Ohio St.3d 402, reviewed an aggravated example of prosecutorial misconduct. The court examined the prosecutor's conduct and proceeded to consider its effect upon the trial. The court noted in Keenan that the evidence was not overwhelming and that the trial court gave no curative instruction. Such is not the case here. The appellant cites the following five statements as examples of misconduct: Frankly, his testimony, the defendant's testimony was self-serving and he is going to say what he wants to say, what he thinks he has to say. On the other hand, you've got hard evidence and you've got the testimony of a fine police officer from Cleveland. (T. 253.) * * * * What reason would this officer have for planting that evidence on the defendant in this case? (T. 254.) * * * * You will hear the law at the end of this case. You can base this case entirely on the testimony of Officer Walker. You just have to judge him and believe that he is telling you the truth and that's it. That's all you need. (T. 255.) * * * * The point is, ultimately, ladies and gentlemen, you need the trust or you need to determine who you can trust. Anybody can say anybody is lying, but who do you trust? That's what this is all about. You got Officer Walker telling you just what happened. (T. 257.) * * * * - 8 - This officer followed this case from the beginning and brought it here to you. He did his part. We're asking you simply to do your part. This is what happened and he is telling you exactly what happened. (T. 260.) This court has reviewed these remarks in the context of the entire closing argument and finds that the prosecutor was merely arguing an issue of the credibility of the police officer as a witness. No prejudice accrued to the appellant from these remarks. The appellant also argues that the following two questions to the appellant during cross-examination were intended to incite the passion of the jury: Q Do you think you can lie through your whole life, Andre, about everything you do? * * * * Q I mean, do you expect that you can just tell this jury anything you want and they are going to believe it? (T. 227, 228.) In Keenan, supra, the court cited to Donnelly v. DeChristoforo (1974), 416 U.S. 637 and held that one factor relevant to the due- process analysis is whether the misconduct was an isolated incident in an otherwise properly tried case. Here, no objection was raised at trial. In addition, after the first comment the trial judge intervened and informed the jury that he was responsible for sentencing and that they were to determine whether or not the state had met its burden of proof. (T. 227.) After careful review of the entire trial it is clear that these comments were isolated incidents in a properly tried case. - 9 - The first assignment of error is overruled. The second assignment of error: II THE LOWER COURT COMMITTED PLAIN ERROR WHEN IT SENTENCED THE DEFENDANT ON BOTH COUNTS ONE AND TWO OF THE INDICTMENT WHEN THEY WERE ALLIED OFFENSES AS DEFINED BY O.R.C. 2941.25. The appellant argues that the trial court erred when it failed to determine that the appellant's convictions pursuant to R.C. 2924.03(A)(2) and R.C. 2925.03(A)(4) were allied offenses of similar import. The appellant has waived his right to raise this issue upon appeal as there was no objection raised before the trial court. State v. Comen (1990), 50 Ohio St.3d 211. In addition, this court has repeatedly held that these two revised code sections are not allied offenses of similar import. See State v. Roberson (Jan. 19, 1995), Cuyahoga App. No. 64956, unreported. The appellant's second assignment of error is overruled. 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. 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. LEO M. SPELLACY, C.J., and JOHN T. PATTON, J., CONCUR. JAMES D. SWEENEY 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 .