COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69115 CITY OF MAYFIELD HEIGHTS : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOSEPH D. SCARSO : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION APRIL 18, 1996 CHARACTER OF PROCEEDING Criminal appeal from South Euclid Municipal Court Case No. 93-CRB-232 JUDGMENT Affirmed. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: IRL D. RUBIN, ESQ. JAMES M. LYONS, ESQ. Jacobs & Rubin 204 Third Street 220 Western Reserve Bldg. Fairport Harbor, Ohio 44077 1468 West Ninth Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Joseph D. Scarso appeals from his conviction in South Euclid Municipal Court following a jury trial for criminal mischief in violation of Mayfield Hts. Ordinance 541.11. Defendant asserts the trial court erred in that his conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. Error is also asserted in the court's failure to suppress evidence of defendant's statements to police officers and the knife that he allegedly used to slash tires on his girlfriend's car. We find no error and affirm for the reasons stated below. On June 15, 1993 at approximately 1:01 a.m., the Mayfield Hts. Police Department received a 911 call from Lisa M. Calvo indicating that she had observed someone tampering with her vehicle in the apartment parking lot where she lived. Ms. Calvo stated to the police dispatcher that she saw defendant, her former boyfriend, exit the parking lot in a maroon Cadillac. She indicated the route that the defendant was likely to take to drive home. Based upon this information, Mayfield Hts. Police stopped the maroon Cadillac on Ridgebury Road near the border of Mayfield Village and Mayfield Heights. One of the officers dispatched to the scene conducted a search of the interior of the defendant's vehicle for weapons and found a knife. The knife was a King Cobra Special Stainless Steel with a six inch blade. The defendant was not arrested at this point. The Mayfield Hts. officers recognized - 3 - the defendant as a Mayfield Village police officer. The officers testified that they wanted to talk with the complainant to determine whether a complaint would be filed. The defendant accompanied the officers to the Mayfield Hts. police station. At the station the defendant openly discussed the events with the officers. A Mayfield Hts. officer interviewed Ms. Calvo at her apartment and observed that the tires on Ms. Calvo's car had been slashed and photographed the damage. At this point, the complainant was unsure if she wanted to pursue the charges against the defendant and he was allowed to go home. At approximately 6:00 a.m. that same morning, Ms. Calvo signed the complaint against the defendant. That same morning, June 15, 1993, defendant had several discussions with his Mayfield Village police superiors regarding this incident. Defendant approached his Executive Officer, Lt. John S. Jay, and requested a private meeting with him behind closed doors. Defendant immediately told the Lieutenant about the events of the previous night. He told Lt. Jay that he called in sick for his shift and proceeded to his girlfriend's house where he slashed her tires. Lt. Jay's first reaction to the defendant was to advise him that he should say no more concerning the incident. Mr. Scarso continued to make various voluntary and unsolicited statements wherein he admitted his involvement in the incident and the slashing of the tires on Ms. Calvo's car. - 4 - Lt. Jay advised defendant to tell the Mayfield Village Chief that he had been charged with a crime in Mayfield Hts. Defendant then advised his superior, in writing, that he had been charged by the Mayfield Hts. Police with criminal mischief. Thereafter, defendant had a further conversation with Lt. Jay wherein he attempted to instigate charges against the complaining witness herein, Ms. Calvo, and made a written statement to Lt. Jay regarding that alleged incident. Later that morning, defendant met in the office of Mayfield Village Police Chief Donald H. Stevens. Two other senior officers were present at that meeting. Defendant again admitted his involvement in the incident in Mayfield Hts., that he had slashed the tires to Ms. Calvo's car, and further discussed his desire to bring charges against her in an attempt to coerce her to drop the charges against him. Following a jury trial on March 13-15, 1995, defendant was convicted of criminal mischief under Mayfield Hts. Ordinance 541.11. After trial, defendant filed a Crim. R. 29(C) motion for judgment of acquittal, which was denied. A stay of execution was entered pending appeal. A timely appeal ensued to this Court. We will address defendant's assignments of error in the order presented and together where convenient to the discussion. - 5 - I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING THE DEFENDANT'S MOTIONS FOR ACQUITTAL AS TO HIS CONVICTION FOR DESTROYING THE TIRES OF LISA CALVO AT THE CLOSE OF STATE'S EVIDENCE AND ALSO AFTER THE JUDGMENT OF CONVICTION BECAUSE THE STATE FAILED TO PROVE THROUGH SUFFICIENT EVIDENCE AND BEYOND A REASONABLE DOUBT THE ESSENTIAL ELEMENT THAT THE TIRES OF LISA CALVO WERE DESTROYED. II. THE CONVICTION IN THE TRIAL COURT SHOULD BE REVERSED BECAUSE IT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THE EVIDENCE SUPPORTING IT WAS INSUFFICIENT AS A MATTER OF LAW TO PROVE THE CONVICTION BEYOND A REASONABLE DOUBT. The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109, 113. Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational - 6 - trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) Quoted and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As this Court has stated: The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers of fact. State v. Thomas (1982), 70 Ohio St.2d 79, 24 O.O.3d 150, 434 N.E.2d 1356. If there was sufficient evidence for the triers of fact to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1177, 103 L.Ed.2d 239. State v. Rios (1991), 75 Ohio App.3d 288, 291. Also, see, State v. Jenks (1991), 61 Ohio St.3d 259, 273. Defendant argues in support of these two assignments of error that there was no evidence that Ms. Calvo's tires were "destroyed" and that expert testimony is required to show that tires, when slashed by a knife, are rendered useless. This argument is not persuasive. "Expert testimony in Ohio is admissible if it will - 7 - assist the trier of fact in search of the truth *** when such knowledge is within the ken of the jury, expert testimony is inadmissible." State v. Koss (1990), 49 Ohio St.3d 213, 216. The complainant, Ms. Calvo, testified that she saw the defendant cut her rear tires with a knife; that she heard the air rushing out; that she observed the damage to the tires; that the car was sitting on its rims the following morning. Mayfield Hts. Police Officer Robert Bandelow, III, who interviewed Ms. Calvo, testified that he saw the damage to the tires and that he took photographs of the damaged tires which were placed in evidence at trial. Chief Stevens and Lt. Jay both testified that the defendant told them that he slashed the tires with a knife. Defendant was charged with destroying the property of Lisa Calvo under Section 541.11 of the General Offense Code of Mayfield Hts. which provides: 541.11 CRIMINAL MISCHIEF. (a) No person shall: (1) Without privilege to do so, knowingly move, deface, damage, destroy or otherwise improperly tamper with the property of another; The Mayfield Hts. Code defines serious physical harm to property as follows: "Serious physical harm to property" means any physical harm to property which does either of the following: (1) Results in substantial loss to the value of the property, or requires a substantial amount of time, effort or money to repair or replace; - 8 - (2) Temporarily prevents the use of enjoyment of the property, or substantially interferes with its use or enjoyment for an extended period of time; Defendant asserts that there was insufficient evidence presented to show that the tires in question were in fact damaged. Defendant argues that there was a lack of physical evidence to support the conviction. However, the testimony of Ms. Calvo, the police officer and the pictures of the slashed tires were sufficient to take the issue to the jury. Viewing the evidence presented in a light most favorable to the City, the trier of fact could have reasonably concluded that defendant destroyed the tires. The same considerations support the proposition that the conviction for criminal mischief was not against the manifest weight of the evidence. Assignments of Error I and II are overruled. III. THE TRIAL COURT ERRED AS A MATTER OF LAW AND COMMITTED REVERSIBLE ERROR WHEN IT DID NOT SUPPRESS THE KNIFE AND THE STATEMENTS THAT THE APPELLANT MADE TO THE MAYFIELD VILLAGE POLICE BECAUSE THAT EVIDENCE WAS THE FRUIT OF THE POISONOUS TREE. IV. THE TRIAL COURT ERRED AS A MATTER OF LAW AND COMMITTED REVERSIBLE ERROR WHEN IT DID NOT SUPPRESS THE STATEMENTS THAT THE APPELLANT MADE TO THE MAYFIELD VILLAGE POLICE PURSUANT TO THE STANDARDS ESTABLISHED IN THE CASE OF GARRITY VS. NEW JERSEY 385 US 493, 17 L ED2D 562, 87 S. CT. 616 (1967). Defendant asserts that the knife found by the search incident to the investigative stop and statements he made to Mayfield Village police should have been suppressed by the trial court. The - 9 - trial court did suppress the statements made by defendant to the Mayfield Hts. police, but refused to suppress the knife and statements defendant voluntarily made to his own superiors in the Mayfield Village Police Department. Defendant argues that the knife and statements he made to his fellow officers are "fruit of the poisonous tree" and should be suppressed. Defendant characterizes the search of his vehicle and the discovery of the knife as a search incident to arrest. The search in this case was a limited search for weapons conducted for the protection of the officers. State v. Bradley (1995), 101 Ohio App.3d 752; State v. Valez (May 4, 1995), Cuyahoga App. No. 67595, unreported. In order to justify the stop of defendant's vehicle, the officers must have a "reasonable suspicion" justifying the investigative stop and protective search of the vehicle. Reasonableness is viewed in light of the totality of the surrounding circumstances. State v. Bobo (1988), 37 Ohio St.3d 177. It is well-settled that once an officer has made a reasonable investigative stop and has a reasonable suspicion that an individual may be armed, "the officer may initiate a protective search for the safety of himself and others." State v. Bobo, supra, at paragraph two of syllabus. The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence ***." Adams v. Williams (1972), 407 U.S. 143 at 146, 32 L.Ed.2d 612, 92 S. Ct. 1921. - 10 - As the United States Supreme Court explained in Terry v. Ohio (1968), 392 U.S.1, 24: *** We cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. *** It would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. The instant stop was reasonable under the circumstances. The Mayfield Hts. officers had a reasonable suspicion that defendant was involved in specific criminal activity from which he was fleeing. They had received a 911 call that a vehicle had been tampered with and were advised that the vehicle driven by defendant was involved in the crime. They found defendant on the very route that Ms. Calvo had described. When the officers arrived on the scene, they knew that defendant was a Mayfield Village police officer and likely to be armed and that the criminal activity that was under investigation involved the use of a knife. The defendant also moved quickly towards the officers when he was stopped and would not return to his vehicle when ordered to do so. For these reasons, the officer searched the front passenger area of defendant's vehicle for weapons where the knife was found. The search of the front seat area of defendant's vehicle for weapons was a reasonable intrusion given the information available to the officers at that time. - 11 - Defendant argues that any statements made to his employer and superiors in the Mayfield Village Police Department may not be used against him pursuant to the holding in Garrity v. New Jersey (1967), 385 U.S. 493. Garrity is inapplicable to this case. Garrity stands for the proposition that a public official (police officers) confronted with an investigation into corruption, may not be forced "either to forfeit their jobs or to incriminate themselves." Id. at 497. Such a choice would effectively negate the Fifth Amendment privilege against self-incrimination. However, Garrity has no application to the June 15, 1993 statements made by defendant to Lt. Jay, his superior officer in Mayfield Village. These statements were unsolicited and voluntary; they were not in response to any interrogation by Lt. Jay. The exchange was initiated by defendant not by the Lieutenant. Nor does Garrity apply to the statements made to Chief Stevens in his office on June 15, 1993. The Mayfield Village Police Department was not investigating possible criminal activity by defendant in Mayfield Hts. Defendant had already been charged in Mayfield Hts. when he spoke to Chief Stevens. The defendant had a duty to notify his superiors of his involvement in the incident but, was not ordered to respond to Chief Stevens under penalty of losing his job which is the primary basis for the holding in Garrity. Assignments of Error III and IV are overruled. - 12 - V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ADMITTED THE KNIFE INTO EVIDENCE EVEN THOUGH THERE WAS NOT A PROPER LEGAL FOUNDATION FOR THE KNIFE BECAUSE THERE WAS A BREAK IN THE CHAIN OF EVIDENCE. Defendant contends that the chain of custody of the knife was broken thereby rendering the weapon inadmissible. The Mayfield Hts. officer who removed the knife from defendant's car was unavailable and did not testify at trial. However, he did testify at the suppression hearing and identified the knife at that time. The knife was admitted into evidence at that hearing. The location and identity of the knife since the time of the suppression hearing was accounted for through the custodian of evidence records of the Mayfield Hts. Police Department. In addition, another Mayfield Hts. patrolman testified that he was present at the time the knife was removed from defendant's vehicle; that he observed the other officer remove the knife; that he was present when the knife was placed in evidence at the suppression hearing; and that the knife produced at trial was the knife removed from defendant's car at the time of the stop. "The State bears the burden of establishing the proper chain of custody; however, it is not an absolute duty." In re Lemons (1991), 77 Ohio App.3d 691, 693; State v. Moore (1973), 47 Ohio App.2d 181, 183. A chain of custody can be established by direct testimony or by inference. State v. Conley (1971), 32 Ohio App.2d 54, 60. A strict chain of custody is not required for physical evidence to be admissible. State v. Wilkins (1980), 64 Ohio St.2d - 13 - 382, 389; State v. Banks (Jan. 26, 1995), Cuyahoga App. No. 66811, unreported. The State need only establish that it is reasonably certain that substitution, alteration or tampering did not occur. State v. Barzacchini (1994), 96 Ohio App.3d 440, 458. Moreover, breaks in the chain of custody go not to the admissibility of evidence, but to the weight to be given the evidence. State v. Richey (1992), 64 Ohio St.3d 353, 360; State v. Blevins (1987), 36 Ohio App.3d 147; State v. Mays, III. (Dec. 20, 1995), Cuyahoga App. No. 67262, unreported at 24; State v. Curry (Dec. 17, 1992), Cuyahoga App. No. 63438, unreported. The City produced sufficient evidence to allow the jury to determine that the knife introduced into evidence was, in fact, the knife removed from defendant's car. Assignment of Error V is overruled. 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 South Euclid Municipal 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. HARPER, P.J., and DAVID T. MATIA, J., CONCUR. JAMES M. PORTER 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 .