COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69078 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION MATTHEW EDWARDS : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 11, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-308663 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. NICHOLAS K. THOMAS, ESQ. Cuyahoga County Prosecutor 21801 Lakeshore Boulevard EDWARD F. FERAN, ESQ. Euclid, Ohio 44123 Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant-appellant Matthew Edwards appeals from his jury convictions for drug abuse and drug trafficking. Defendant was indicted with co-defendant Antonio Cammon on three charges. Two charges were for drug trafficking by knowingly (1) possessing at least three times the bulk amount of cocaine, and (2) preparing cocaine for shipment or distribution knowing or having reasonable cause to believe it was for sale. The third charge was for possessing criminal tools. The charges against defendant and co-defendant proceeded to separate trials. The case against defendant proceeded to a jury trial on March 20, 1995. The prosecution presented testimony from five witnesses. The prosecution's evidence revealed that the police obtained a search warrant following a controlled drug buy through a confidential informant. The officers executed the warrant and found a bag of eight rocks of crack cocaine in defendant's coat pocket. Additional cocaine was found throughout the house which was owned by co-defendant Cammon. Defendant did not present any testimony. The trial court submitted only two charges to the jury. The trial court submitted one count of drug trafficking and a lesser charge of drug abuse on the second drug trafficking charge. The prosecution dismissed the third count for possession of criminal tools. The jury returned a verdict finding defendant guilty of the drug abuse and drug trafficking charges. Defendant, through - 3 - newly appointed appellate counsel, timely appeals raising two assignments of error. Defendant's first assignment of error follows: THE APPELLANT WAS DEPRIVED OF HIS DUE PROCESS RIGHTS AND THE RIGHT TO A FAIR TRIAL UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION. This assignment of error lacks merit. Defendant contends the trial court erred by permitting the prosection to introduce into evidence a sealed envelope, with handwritten comments by police officers, containing crack cocaine taken from him prior to his arrest. The handwritten comments described the circumstances of how the police obtained the cocaine from defendant. Defendant complains that the written comments on the envelope given to the jury, Exhibit 1, inordinately bolstered the prosecution's case beyond the supporting testimony. The record shows that defendant's trial counsel did not object anytime during trial to the handwritten notation on the evidence envelope naming defendant and stating the contents were "taken from rt front coat pocket." As a result, any claim of error would be waived absent plain error. This court recently summarized the standard governing such claims in the context of exhibits submitted to a jury as follows: Initially, we note that an appellate court need not consider an error which a complaining party could have called to the trial court's attention at a time when the trial court could have avoided or corrected the error. State v. Ferrette (1985), 18 Ohio St.3d 106; State v. Williams (1977), 51 Ohio St.2d 112. - 4 - However, Crim.R. 52(B) provides that plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court. Furthermore, it has been that an error does not constitute a plain error or defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise. State v. Long (1978), 53 Ohio St.2d 91, 97. Notice of plain error is to be taken with the utmost caution and only to avoid a manifest miscarriage of justice. Id. State v. Ashby (Dec. 26, 1991), Cuyahoga App. No. 59616, unreported at pp. 3-5. Defendant has failed to show plain error in this case. The record shows that Detectives Ehrbar and Shoulders testified concerning the circumstances that the police obtained the cocaine from defendant. Detective Ehrbar testified that he personally obtained the bag of cocaine from defendant's right front coat pocket. (Tr. 145.) Detective Shoulders confirmed that Detective Ehrbar obtained the cocaine from defendant. (Tr. 114.) Defendant's brief on appeal claims merely that the notations on the envelope recite the same information provided by the two detectives. The challenged information, therefore, was cumulative to the detectives' testimony, which was not controverted. Under the circumstances, defendant has failed to show that the jury verdict would have been different if the envelope had not been introduced into evidence. Id. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error follows: APPELLANT WAS DEPRIVED OF HIS DUE PROCESS RIGHTS AND THE RIGHT TO A FAIR TRIAL UNDER THE FIFTH, SIXTH AND - 5 - FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION. This assignment of error lacks merit. Defendant's brief on appeal contends for the first time that the prosecutor made improper rebuttal comments during his final closing argument. Defendant complains that the prosecutor failed to use the first opportunity to present all the state's arguments and in rebuttal went beyond the scope of defendant's closing argument. The record shows that defense trial counsel did not raise any objection to the rebuttal argument of the prosector. As a result, any claim of error is waived unless the prosecutor's comments rise to the level of plain error. State v. Johnson (1989), 46 Ohio St.3d 96, 101-102. As noted above, notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. Id. Defendant must show that, but for the prosecutor's argument, the jury would have reached a different verdict. Id. The record does not show error, let alone plain error, in this case. The prosecutor made a brief statement during the opening phase of closing arguments. Defense counsel followed with a lengthy closing argument, to which the prosecutor thereafter responded in his final closing argument. The total length of the prosecutor's arguments in both phases was less than the arguments made by defense counsel. The record contains no improper statements by the prosecution during either phase of his - 6 - argument. Defendant's appellate counsel concedes as much in his brief on appeal: Although most of the remarks by the prosecutor in its rebuttal were seemingly innocuous, it is appellant's contention that the form, not necessarily the substance, was improper. Brief at p. 6. The prosecutor's final closing argument was proper "rebuttal" insofar as the prosecutor limited his rebuttal to arguments made by defense counsel during his closing argument. Moreover, if defense counsel believed it necessary to make additional arguments, he could have asked the trial court, which has discretion to vary the order of proceedings, to provide such an opportunity. See State v. Mahoney (1986), 34 Ohio App.3d 114, 123. Defense counsel, however, made no such request. Defense further claims the prosecutor's closing arguments improperly directed the jurors to ignore the prior drug sale that led to the issuance of the warrant. On the contrary, the prosecutor merely cautioned the jurors to focus on the charges against defendant in this case, rather than on the prior sale giving rise to the search warrant. Defendant was not charged in this case with making the prior controlled drug sale. He was charged with drug trafficking when the police executing the search warrant observed him with a bag of crack cocaine on his person. There is nothing improper with this argument. The trial court, moreover, properly instructed the jury concerning the use of the parties' arguments. Ultimately, defendant has failed to - 7 - show that the jury verdict would have been different without the prosecutor's final closing argument. Accordingly, defendant's second assignment of error is overruled. Judgment affirmed. - 8 - 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. DAVID T. MATIA, P.J., and O'DONNELL, J., CONCUR. DIANE KARPINSKI 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 it will become the judgment and .