COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68927 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION RONALD WALKER, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : MARCH 7, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-306571 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Bruce Courey Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Valerie R. Arbie Assistant Public Defender 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 -2- NAHRA, J.: Defendant-appellant Ronald A. Walker, a.k.a. Robert Johnson, appeals form his conviction for violation of R.C. 2925.03(A)(4), possession of cocaine. Appellant's conviction stems from an incident which occurred at approximately 6:00 p.m. on the evening of October 7, 1993. At that time, three Cleveland police officers were in their zone car on basic patrol in the area of East 131st Street and Crennell Avenue. The area is one known for drug activity. Officer Reginal Wimbley was driving the zone car. When he reached the intersection, he noticed four people in the doorway of a vacant restaurant. A male, later identified as appellant, appeared to be displaying something on the doorstep to three females who were standing around him. Wimbley turned on the zone car's public address system. Over it, he informed the group they were loitering and had to leave the area. Appellant looked up, apparently startled. The women moved away, walked to the corner and proceeded northbound on East 131st. Appellant, however, took only about six steps in another direction, stopped, returned to the doorstep and picked up an object with his right hand, then started running westbound on Crennell Avenue. Appellant's action alerted the officers. Wimbley initially attempted to pursue him in the zone car, but appellant reversed his direction, so Wimbley stopped the car. His companions exited the car and took off after appellant; Wimbley went a different direction to try to cut appellant off. -3- As he was running, Wimbley had appellant in his view. Appellant went by a garage; as he was passing it, he removed the cap he was wearing, placed the object from his right hand into the cap, then dropped the cap. Wimbley could hear his fellow officers shouting at appellant to stop. Appellant did not obey. Instead, he attempted to scale a six-foot fence near the garage. Appellant was unable to perfect his escape, however, because thorny brush growing against the fence blocked him. The officers at that point caught up to appellant. Appellant was placed under arrest. As he was being escorted back to the zone car, Wimbley asked appellant why he ran. Appellant replied that he was not a drug dealer, but was "just a user." Prior to leaving the area, one of the other officers retrieved the cap appellant had dropped near the garage. Inside was a brown prescription bottle which bore the name "Deborah Walker." Appellant told the officers Deborah Walker was his sister, although he gave his own name as "Robert Johnson." The bottle contained thirty rocks which later tested positive as 5.02 grams of crack cocaine. When his personal effects were inventoried, appellant also was found to be in possession of $154.00 in cash. Appellant was subsequently indicted on three counts as follows: 1) R.C. 2925.03(A)(4), possession of cocaine in an amount equal to or exceeding the bulk amount but less than three times that amount; 2) R.C. 2925.03(A)(2), trafficking in cocaine; and 3) R.C. 2923.24, possession of criminal tools, to wit: money. -4- Appellant entered pleas of not guilty to the charges and was assigned counsel. Appellant's case was tried to a jury. The state presented the testimony of Wimbley, Wimbley's companion Officer Todd Clark, and Eugenia Whitt of the police department's Scientific Investigation Unit ("SIU"). Upon appellant's Crim.R. 29 motion for acquittal, the trial court dismissed the last two counts of the indictment. Appellant then presented the testimony of two of his friends and also testified in his own behalf; the substance of their testimony was that although appellant was in the area of East 131st and Crennell Avenue on the evening of October 7, 1993, the police had arrested the wrong person. Ultimately, the jury found appellant guilty of the first count of the indictment. The trial court sentenced appellant to a term of incarceration of two years, eighteen months of which was to be actual incarceration. Appellant has filed a timely appeal from his conviction and presents three assignments of error for this court's review. I. Appellant's first assignment of error states: RONALD WALKER'S RIGHT TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WAS VIOLATED BY THE MISCONDUCT OF THE PROSECUTOR WHEN THE PROSECUTING ATTORNEY REPEATEDLY FORCED MR. WALKER TO EXPRESS HIS OPINION AS TO THE TRUTHFULNESS OF THE STATE'S WITNESSES. -5- Appellant argues that the conduct of the prosecutor in this case was so egregious that it denied him his right to a fair trial. Specifically, appellant contends that during cross-examination, the prosecutor improperly asked appellant to give his opinion of the veracity of the police officers with regard to their testimony concerning the incident. This court has examined the record in light of appellant's contention and conclude his argument is unpersuasive. Generally, conduct of the prosecutor at trial shall not be a ground for error unless the conduct deprives the defendant of a fair trial. State v. Apanovitch (1987), 33 Ohio St.3d 19; State v. Papp (1978), 64 Ohio App.2d 203. In the analysis of whether the defendant was deprived of a fair trial, the effect of the prosecutor's conduct must be considered in light of the entire case in order to determine whether the conduct was prejudicial. The test is whether absent the prosecutor's questions the fact-finder would have found the defendant guilty. State v. Maurer (1984), 15 Ohio St.3d 239, 267. It must be noted appellant failed to object to the alleged error of which he now complains. State v. Williams (1977), 51 Ohio St.2d 112. Appellant invokes the doctrine of "plain error" to overcome this deficiency. The plain error rule, however, "is to be applied with the utmost caution and invoked only under exceptional circumstances, in order to prevent a manifest miscarriage of justice." State v. Cooperrider (1983), 5 Ohio St.3d 226 at 227. (Emphasis added.) See, also, State v. Long (1978), 53 Ohio St.2d -6- 91. Moreover, to constitute plain error, it must be obvious that, "but for the error, the outcome of the trial clearly would have been otherwise." State v. Underwood (1983), 3 Ohio St.3d 12 at the syllabus. (Emphasis added.) A review of the record reveals that although the prosecutor asked what could be construed as indiscreet questions, they did not warrant reversal in this case. A prosecutor may certainly probe the credibility of the testifying witness, including the defendant. Appellant points only to a minor episode where the prosecutor asked improper questions. The brevity of this line of inquiry in the context of the whole trial suggests that it did not deprive appellant of his right to a fair trial. State v. Ferguson (June 4, 1992), Cuyahoga App. No. 60713, unreported; State v. Burford (Dec. 9, 1993), Cuyahoga App. No. 64432, unreported; State v. Beard (Jan. 14, 1993), Cuyahoga App. No. 61493, unreported. A review of the record fails to indicate the prosecutor's questions of appellant substantially prejudiced appellant and denied him his right to a fair trial. Cf. State v. Swiger (1987), 43 Ohio App.3d 371. Error, if any, was therefore harmless beyond a reasonable doubt. State v. Maurer, supra; State v. Jenks (1991), 61 Ohio St.3d 259; State v. Vrona (1988), 47 Ohio App.3d 145. Accordingly, appellant's first assignment of error is overruled. II. Appellant's second assignment of error states: -7- RONALD WALKER'S RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL WHEN THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO PROVE THE NECESSARY ELEMENT OF "UNIT DOSAGE" WITHIN "BULK AMOUNT". Appellant argues the trial court erred in denying his motion for acquittal with regard to the first count of the indictment, viz., violation of R.C. 2925.03(A)(4). He contends the state failed to produce sufficient evidence to prove the cocaine found in the prescription bottle was "in an amount equal to or exceeding the bulk amount, but . . . less than three times that amount." This court does not agree. In State v. McCoy (1989), 63 Ohio App.3d 644, motion for leave to appeal overruled (1990), 49 Ohio St.3d 951, the court addressed a similar argument and reasoned as follows: R.C. 2925.01(E)(1) provides: "(E) `Bulk amount' of a controlled substance means any of the following: "(1) An amount equal to or exceeding ten grams or twenty-five unit doses of a compound, mixture, preparation, or substance which is, or which contains any amount of . . . cocaine[.]" Since this statute uses the disjunctive "or" between the weight and dosage descriptions, the state is required to prove either weight or dosage, but not both. State v. Howell (1981), 5 Ohio App.3d 92, 93, 5 OBR 206, 206-208, 449 N.E.2d 523, 525. R.C. 2925.01(F) provides: "`Unit dose' means an amount or unit of a compound, mixture, or preparation containing a controlled substance, such amount or unit being separately identifiable and in such form as to indicate that it is the amount or unit by which the controlled substance is separately administered to or taken by an individual." -8- McCoy contends that a rock of cocaine cannot be considered a unit dosage because the rocks varied in size. . . . The state argues that each individual rock of cocaine is an identifiable unit of cocaine. This is so because each rock of cocaine could be smoked individually. There is no doubt that each of the rocks of cocaine is separately identifiable as a unit. Each rock of cocaine could have been separately smoked by an individual. Because some users may choose to smoke more than one rock or piece of cocaine does not mean that one rock or piece is not sufficient to constitute a unit dose. Each piece can be sold and used separately. McCoy's assignment of error is not well taken . . . . (Emphasis added.) This court has adhered to the same reasoning. See, e.g., State v. Barr (1993), 86 Ohio App.3d 227; State v. Powell (1993), 87 Ohio App.3d 157, motion for leave to appeal overruled (1993), 67 Ohio St.3d 1451. In this case, both Wimbley and the SIU technician testified the bottle confiscated at the scene contained thirty rocks of crack cocaine. Wimbley further testified that in his experience as a police officer: 1) only one rock was necessary in order for a person to "get high;" 2) he had seen rocks worth from five to twenty dollars; and 3) because of their size, the rocks appellant tried to discard were twenty dollar rocks which were "a larger dose." The SIU technician also testified that for cocaine, the bulk amount was "ten grams or 25 unit doses." -9- The foregoing demonstrates the state provided sufficient evidence that appellant had been in possession of thirty "unit doses" of cocaine for purposes of R.C. 2925.03(A)(4). State v. Powell, supra. Therefore, the trial court did not err in denying appellant's motion for acquittal. State v. McCoy, supra; State v. Barr, supra. Accordingly, appellant's second assignment of error is also overruled. III. Appellant's third assignment of error states: THE TRIAL COURT COMMITTED PLAIN ERROR AND DENIED THE APPELLANT DUE PROCESS OF LAW WHEN IT ALTERED THE STATUTORY LANGUAGE OF THE OFFENSE IN ITS INSTRUCTION TO THE JURY. Relying on his argument in the previous assignment of error that the state provided no evidence to prove the "unit dose" element of R.C. 2925.03(A)(4), appellant asserts the jury instructions given by the trial court on this matter were so improper as to constitute plain error. In considering appellant's argument, this court is mindful of its disposition of appellant's second assignment of error. Moreover, in reviewing jury instructions each instruction must be viewed in the context of the overall charge, not merely judged in artificial isolation. State v. Price (1979), 60 Ohio St.2d 136. Additionally, once again, to constitute plain error, it must be obvious that, "but for the error, the outcome of the trial clearly would have been otherwise." State v. Underwood, supra. -10- In relevant part, the trial court instructed the jury as follows: Now, in order for the State to have proved its case it's necessary that they have established that the defendant knowingly possessed cocaine being an amount greater than the bulk amount of 25 rocks. So let me explain to you; knowingly possess are the key elements of the charge of drug abuse. First, a person acts knowingly regardless of his purpose when he's aware that his conduct will probably cause a certain result or he's aware that his conduct will probably be of a certain nature. Possession means having control over a think (sic) or substance -- having control over a thing or substance. So the substantial elements then are that the defendant has possessed knowingly a quantity of cocaine. Now, the allegation of the State here is that the defendant had in his possession an amount of cocaine that exceeded 25 rocks of cocaine. Namely, the allegation of the State is that he had in his possession 30 rocks of cocaine. All right. Now, the reference by the expert from the SIU, the young lady that testified referred to the law which says that you may not have in your possession either ten grams or 25 rocks. It's not necessary that the 25 rocks amount to ten grams, because the statute reads in the alternative; either ten grams of bulk cocaine or 25 rocks of cocaine. The amount of rocks therefore does not have to add up to ten grams as long as you find that there was a possession knowingly had by the defendant, that he had in his possession this amount of cocaine. As previously discussed, appellate courts in this state have determined a rock of crack cocaine constitutes a "unit dose" for purposes of R.C. 2925.01(E)(1) and R.C. 2925.03. State v. McCoy, supra; State v. Barr, supra; State v. Powell, supra. Moreover, the Ohio Supreme Court has declined to review this determination. -11- Furthermore, in this case the state provided sufficient evidence to support the jury's verdict that appellant violated R.C. 2925.03(A)(4). A review of the trial court's jury instructions under these circumstances and in the overall context of trial, therefore, compels the conclusion that any error was harmless beyond a reasonable doubt and did not compromise appellant's right to a fair trial. State v. Price, supra; State v. Cooperrider, supra; see, also, State v. Mitchell (1989), 60 Ohio App.3d 106. Accordingly, appellant's third assignment of error is also overruled. Appellant's conviction and sentence are affirmed. -12- 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. MATIA, DAVID T., P.J., and PATTON, J., CONCUR. JOSEPH J. NAHRA 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 .