COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69367 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION THEODIS A. GILES, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 2, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-320592 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Kestra Smith-Crutcher Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Charles M. Morgan, Jr. 11510 Buckeye Road Cleveland, Ohio 44104 -2- NAHRA, J.: Defendant-appellant Theodis Giles appeals from his conviction for possession of criminal tools. Appellant's conviction stems from an incident which took place on October 6, 1994, when members of the Cleveland Police Department's ("CPD's") Narcotics Unit executed a search warrant for the second floor apartment in a house located at 1347 East 124th Street. CPD Det. Thomas Roper was the officer in charge of the investigation of allegations of drug activity at that address. Prior to the execution of the search warrant, Det. Roper on three occasions had used a confidential reliable informant ("CRI") to purchase cocaine there. Each time, Roper gave the CRI CPD money 1 which earlier had been "photostated," then watched from an unmarked surveillance vehicle as the CRI went up to the house and purchased an amount of cocaine there from a dealer later identified as Preston McIntyre. The third purchase had been made on October 5, 1994. Roper and at least five other CPD detectives executed the search warrant at about 8:00 p.m. on October 6, 1994. The officers arrived, identified themselves and their purpose, and entered the premises. The first two officers inside immediately saw a young male fleeing up a stairway to the third floor of the building. They quickly pursued the young man, followed by Roper. 1 Quoted material indicates testimony given by a witness at appellant's trial. -3- Behind them, two other detectives, Lyles and Parkinson, stayed on the second floor to secure the persons they found there. Three people were in the living room of the second floor apartment, viz., two women and a young man later identified as appellant. As Lyles approached appellant, he noted appellant seemed "nervous" and that appellant started "sweating." Lyles began a pat down search of appellant. During the pat down, Lyles found $142.00 in one of appellant's pockets. Upon later examination, the money was found to contain two bills which the CRI had used to purchase cocaine the day before. Lyles also felt something in appellant's "watch pocket" which he believed to be a baggie containing pieces of rock cocaine. At that point, Lyles handcuffed appellant, placed him on the couch, and informed Parkinson that he had to return to the police car to get another pair of handcuffs and a "search kit," which included evidence bags. Parkinson continued to search the apartment in order to make sure no one was hiding in any of the other rooms. Consequently, appellant and the two women were left alone in the living room for a short period of time. When Lyles returned to the apartment, he called for his supervisor to take photographs of appellant, the other people occupying the apartment, who by that time also had been taken into custody, and the evidence discovered during the search. However, the baggie Lyles had felt in appellant's watch pocket was now missing. Attempts to locate the baggie proved to be fruitless, -4- although in response to questions about it appellant stated that the officers should "check the couch." Ultimately, a result of the search of the apartment, the officers found a large quantity of marijuana and cocaine, including items packaged as though for sale. Subsequent to the execution of the search warrant, appellant, Preston McIntyre and the two other men who had been arrested at the apartment were indicted. Appellant was charged with one count of drug trafficking, R.C. 2925.03, and one count of possession of criminal tools, to wit: money, R.C. 2923.24. Appellant pleaded not guilty to the charges and was assigned counsel. Appellant's case proceeded to jury trial. The state presented the testimony of five of the CPD detectives present at the execution of the search warrant, including Roper and Lyles. The state also presented into evidence many of the items seized during the search. Following the presentation of the state's case-in-chief, the trial court overruled appellant's motion for acquittal. Appellant elected to present no evidence in his defense. The jury instructions, without objection, included a charge on aiding and abetting. Ultimately, appellant was acquitted of the drug trafficking charge but found guilty of possession of criminal tools. The trial court sentenced appellant to a term of incarceration of one and one-half years. Appellant has filed a timely appeal of his convictions and presents four assignments of error for this court's review. -5- Appellant's assignments of error will be addressed in logical order. I. Appellant's first assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO PROVIDE A JURY ADMONITION FOLLOWING THE TESTIMONY OF THE STATE'S FIRST WITNESS AT THE CLOSE OF THE FIRST DAY OF TRIAL IN VIOLATION OF O.R.C. 2945.34 AS WELL AS DEFENDANT-APPELLANT'S SIXTH AMENDMENT RIGHT TO A A (SIC) FAIR AND IMPARTIAL JURY. Appellant argues the trial court's failure to comply with the mandate of R.C. 2945.34 compromised the fairness of his trial. He contends that because the transcript reflects the trial court did not give a cautionary instruction before recessing on the first day of trial, the jury improperly was permitted to form an opinion of his guilt. The record of appellant's trial reflects after voir dire was completed, the jury was immediately empaneled and sworn. The trial court then told the jury a "brief recess" would be taken prior to opening statements. Following opening statements, trial was recessed for lunch; thereafter, the state called its first witness, who was examined 2 and cross-examined. Det. Roper was then called as a witness; he testified on direct examination. When the prosecutor indicated she was finished with her questions, the trial court declared a recess, 2 The record reflects another short recess was taken during this witness' direct examination in order for the trial court to "take a verdict." -6- wished the jury a "nice evening," and excused it. On the record, however, the trial court held further discussions with the prosecutor and defense counsel concerning evidentiary matters before adjourning trial proceedings for the day. The next day, appellant's trial concluded as the state finished presenting its evidence and the jury received its instructions before returning the verdict. R.C. 2945.34 states: 2945.34 Admonition if jurors separate during trial. If the jurors are permitted to separate during a trial, they shall be admonished by the court not to converse with, nor permit themselves to be addressed by any person, nor to listen to any conversation on the subject of the trial, nor form or express any opinion thereon, until the case is finally submitted to them. It must be noted that despite an opportunity to do so, appellant did not object to the trial court's failure to admonish the jury pursuant to R.C. 2945.34. It is fundamental that an error which the complaining party could have called, but did not call, to the trial court's attention at a time when such error could have been corrected is deemed waived for purposes of appeal. State v. Williams (1977), 51 Ohio St.2d 112. Moreover, although appellant cites State v. Cox (1975), 42 Ohio St.2d 200 as support for his argument he was denied his right to a fair trial, that case does not avail appellant for two reasons. First, it can be inferred from the record in this case that the jury received the required admonitions during voir dire. On -7- the morning of the second day of trial, following defense counsel's cross-examination of Roper, the trial court stated as follows: THE COURT: Ladies and gentlemen, we are going to take, I guess, a morning recess for about 15 minutes and we're waiting for our next witness to arrive. And before we do that I'd like to tell you about a stipulation, or agreement of fact that the parties have entered into. Remember I told you in voir dire that there were three types of evidence; the testimony from the witnesses on the witness stand, physical exhibits that were admitted in evidence, and there is also a third matter and that is by stipulation. (Emphasis added.) Later that same day, after the jury had returned its verdict, the trial court dismissed it with the following statement: You are now released from the admonition not to discuss the case, but obviously if you don't want to talk about it with anyone, you don't have to and if you want to, you're welcome to. Second, the supreme court in Cox stressed the importance of providing the jury with cautionary instructions before permitting it to separate after it begins deliberations. In this case, only some of the evidence had been presented before proceedings were concluded on the first day of trial; the rest of the evidence was presented the second day, whereupon, without further separation, the jury received full instructions before deliberating and returning its verdict. Thus, the stricture articulated in Cox was not violated. Finally, appellant has presented no support for his assertion he was prejudiced by the trial court's failure to specifically -8- restate the admonitions prior to the evening adjournment on the first day of trial. Since the record reflects the trial court and counsel believed the jury had received the instructions required by R.C. 2945.34, appellant was not denied his right to a fair trial. Therefore, appellant's first assignment of error lacks merit and is, accordingly, overruled. II. Appellant's third assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ADMITTING EXHIBITS 6-A THROUGH H AS THE STATE FAILED TO PRODUCE THESE PHOTOGRAPHS PRIOR TO THE TIME OF TRIAL, RESULTING IN MATERIAL PREJUDICE TO THE DEFENDANT. Appellant argues the trial court erred in permitting the state to introduce into evidence several photographs taken by the police at the apartment after the execution of the search warrant. The photographs depicted, inter alia, the packages of drugs found on the premises and appellant in handcuffs. Appellant argues the photographs were admitted in contravention of Crim.R. 16 and therefore should have been excluded. Recently, the Ohio Supreme Court was confronted by a similar argument and articulated the proper analysis as follows: Crim.R. 16(E)(3) provides for the regulation of discovery in a criminal case and permits a trial court to exercise discretion in determining the appropriate sanction for a discovery violation. State v. Wiles (1991), 59 Ohio St.3d 71, 78, 571 N.E.2d 97, 110; State v. Parson (1983), 6 Ohio St.3d 442, 445, 6 OBR 485, 487, 453 N.E.2d 689, 691; and State v. Edwards (1976), 49 Ohio St.2d 31, 42, 3 O.O.3d 18, 24, 358 N.E.2d 1051, 1059. Crim.R. 16(E)(3) provides that: -9- "If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may make such other order as it deems just under the circumstances." We have held that where a prosecutor violates Crim.R. 16 by failing to provide the name of a witness, a trial court does not abuse its discretion in allowing the witness to testify where the record fails to disclose (1) a willful violation of the rule, (2) that foreknowledge would have benefited the accused in the preparation of his or her defense, or (3) that the accused was unfairly prejudiced. State v. Heinish (1990), 50 Ohio St.3d 231, 553 N.E.2d 1026, syllabus. See, also, Wiles, supra, 59 Ohio St.3d 71, 79, 571 N.E.2d 97, 110; and Parson, supra, 6 Ohio St.3d 442, 6 OBR 485, 453 H.E.2d 689, syllabus. The same tripartite test applies for determining whether a trial court has abused its discretion in admitting other evidence that was not properly disclosed under Crim.R. 16. See, generally, Parson, supra. State v. Scudder (1994), 71 Ohio St.3d 263 at 268, 269. (Emphasis added.) In this case, appellant does not argue the state's failure to timely disclose the existence of the photographs was willful. Instead, appellant asserts in a conclusory manner that foreknowledge of them would have aided him in his trial strategy. Appellant also contends the photographs tended to "inculpate" him with drug activity without any basis in the other evidence adduced at trial. The trial court's stated basis for admission of the photographs was that they merely illustrated the police officers' testimony. A review of the transcript reveals the trial court's assessment was correct. -10- Two detectives testified they discovered drugs in at least two areas of the residence, viz., on the floor and under a floorboard of the attic, and in the bedroom next to the living room. All of them testified, without objection, that after being arrested during the search, appellant was handcuffed and placed upon the living room couch. In view of this testimony, the admission of the photographs into evidence was merely cumulative. State v. Perry (1992), 80 Ohio App.3d 78; cf., State v. Walden (1984), 19 Ohio App.3d 141. Moreover, since the photographs were not otherwise inadmissible, appellant's assertion that he could have prepared a "proper ground" for objection is baseless. Furthermore, appellant was aware of what the officers' testimony would be; thus, he cannot demonstrate his trial strategy was affected by the admission of the photographs into evidence. State v. Scudder, supra; State v. Czajka (1995), 101 Ohio App.3d 564. Based upon the foregoing, this court is unable to conclude the trial court erred or abused its discretion in this case. Accordingly, appellant's third assignment of error is also overruled. III. Appellant's second assignment of error stats: THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AS THE EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT TO SUSTAIN A CONVICTION OF THE OFFENSE OF POSSESSION OF CRIMINAL TOOLS. -11- Appellant argues the trial court should have granted his motion for acquittal on the charge of possession of criminal tools. He contends his conviction on this count was improper because the state failed to prove his criminal purpose with regard to the money found in his pocket. A motion for judgment of acquittal may be granted only where reasonable minds could not fail to find reasonable doubt. State v. Apanovitch (1987), 33 Ohio St.3d 19; State v. Bridgeman (1978), 55 Ohio St.2d 261. In ruling upon the motion, the trial court is required to view the evidence in a light most favorable to the prosecution. State v. Jenks (1991), 61 Ohio St.3d 259. The evidence may be either circumstantial or direct; the relevant inquiry on appeal is whether any reasonable trier of fact presented with such evidence could have found the essential elements of the crime proven beyond a reasonable doubt. Id. Appellant was convicted of a violation of R.C. 2923.24, which states in pertinent part: 2923.24 Possessing criminal tools. (A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally. (B) Each of the following constitutes prima-facie evidence of criminal purpose: * * * (2) Possession or control of any substance, device, instrument, or article designed or specially adapted for criminal use; (3) Possession or control of any substance, device, instrument, or article commonly used for criminal -12- purposes, under circumstances indicating such item is intended for criminal use. * * * (Emphasis added.) In this case, Det. Roper gave a detailed explanation of the procedures he used with the CRI when arranging and making the drug purchases at the address. He testified every bill of the money used by the CRI to make the purchases was photocopied and the ones actually used were duly recorded. He further testified the last drug buy made before the search took place the previous day. Another detective involved in the investigation, Charles Charney, testified that in his experience in investigating drug dealers, they would often pass the money they obtained to another person to hold for them. In this way the drug dealer would ensure that if he was robbed, not all of his profits would be taken. Charney stated this was known as "double teaming." Both Charney and Parkinson testified they found drugs and drug paraphernalia in the house. Finally, Det. Lyles stated that when he first saw appellant, appellant did not seem surprised by the arrival of the police, but "nervous" and "sweating." Lyles testified he found a baggie which he believed to contain crack cocaine in one of appellant's pockets during the pat-down search. Furthermore, in appellant's possession also were two of the bills used by the CRI to purchase cocaine the day before. -13- From this evidence, a reasonable trier of fact could have found appellant possessed money which had been "specially adapted" for criminal use under circumstances indicating it was intended for such use. Since the requisite elements of R.C. 2923.24 were proven beyond a reasonable doubt, appellant's conviction was not based upon insufficient evidence. State v. Powell (1993), 87 Ohio App.3d 157; State v. Russell (Nov. 24, 1993), Cuyahoga App. Nos. 64185, 64974, unreported; see, also, State v. Oliver (1987), 31 Ohio App.3d 100. Appellant's second assignment of error is therefore overruled. IV. Appellant's fourth assignment of error states: THE VERDICT OF THE JURY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. Appellant argues that evidence of his guilt was inconclusive, citing this court's opinion in State v. Mattison (1985), 23 Ohio App.3d 10, in support of his argument. In Mattison, this court stated that in making the determination whether the decision of a trial court is against the manifest weight of the evidence, several factors should be taken into account by the reviewing court. The stated factors were, however, "merely guidelines to be taken into account when weighing the evidence," and were not considered to be "hard and fast rules." Id. at 14. See, also, State v. Jordan (1992), 73 Ohio App.3d 524. The test to be applied when reviewing a claim that a conviction is against the manifest weight of the evidence was -14- stated by the court in State v. Martin (1983), 20 Ohio App.3d 172 at 175 as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. * * * See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. (Emphasis added.) Moreover, the weight of the evidence and the credibility of witnesses are primarily for the trier of fact and a reviewing court must not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus; State v. Eley (1978), 56 Ohio St.2d 169. In stating this, this court is mindful that an appellate court need not subject circumstantial evidence of guilt to a standard of proof other than proof beyond a reasonable doubt. State v. Jenks, supra; State v. Tinch (1992), 84 Ohio App.3d 111 at 122-123. In this case, the state presented evidence that appellant was a "double team" mate of Preston McIntyre. Appellant was in the residence when the search warrant was executed only a day after the third drug buy. Appellant was not surprised by the officers' entry, rather, he was so nervous he was sweating. Although it disappeared before the police could obtain it as evidence, -15- appellant was found to be in possession of crack cocaine. Moreover, the money in appellant's pocket included two of the bills Roper had given to the CRI on the day before to make the drug buy. From this evidence, the jury was free to infer appellant was enough involved in the drug activity taking place at the residence to have possessed the CPD money with purpose to use it criminally in violation of R.C. 2923.24. Thus, it cannot be said from a review of the record in this case that the jury clearly lost its way and created a manifest miscarriage of justice. See, e.g., State v. Lee (1990), 66 Ohio App.3d 773; State v. Hardin (1984), 16 Ohio App.3d 243; cf., State v. Novak (Jan. 28, 1993), Cuyahoga App. No. 61799, unreported. Accordingly, appellant's fourth assignment of error is also overruled. Appellant's conviction is affirmed. -16- 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 O'DONNELL, 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 .