COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69409 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION NATHANIEL GIPSON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION JULY 3, 1996 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-316986 JUDGMENT Affirmed in part; reversed in part. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES PAUL MANCINO, JR., ESQ. Cuyahoga County Prosecutor 75 Public Square Building JEFFREY MARGOLIS, Assistant Suite 1016 Prosecuting Attorney Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Nathaniel Gipson appeals from his conviction following a jury trial for drug abuse (R.C. 2925.11). Defendant contends he was denied due process of law because the trial court: overruled his motion to suppress marijuana found on his person; improperly admitted evidence of "other acts"; improperly instructed the jury; failed to grant his motion for acquittal; fined him although he was indigent; and unconstitutionally suspended his driver's license. We affirm the conviction, but vacate the imposition of the fine for the reasons hereinafter stated. On October 10, 1994 at approximately 8:00 p.m., Cleveland Detectives from the Fourth District Vice Unit in four unmarked cars proceeded to investigate the parking lot of Damon's Deli in the vicinity of Lee and Miles Road based upon complaints by store personnel of males selling crack cocaine. This was an area of high drug activity and had been the scene in the past of intense surveillance and numerous drug arrests. As the police were travelling northbound on Lee Road and approaching Damon's Deli, Detective Kelvin Barrow, in the lead car, observed defendant and a female engaged in what he perceived to be a drug transaction. Defendant had his left hand cupped apparently showing the female some small objects. The female was looking into his hand, and choosing a rock of cocaine. She had money in her hand. From his experience, Detective Barrow believed a drug - 3 - transaction was occurring. As the police approached in their cars, defendant looked up and saw them. He threw white objects in his hand onto the ground, got on his bicycle and attempted to leave the scene. The female attempted to walk away at a quick pace. The officers exited their cars, detained defendant, searched the ground, and retrieved the drugs defendant had discarded. Defendant was patted down and some marijuana was found in his pocket. This testimony of Detective Barrow was established at the suppression hearing and at trial. At the suppression hearing prior to the trial, defendant testified that he happened to be coming out of Damon's Deli after riding his bike up to the deli, and was only in the deli momentarily. Defendant stated that, as he was leaving the store to get a person who had left something in the store, the detectives ran out of the parking lot and told him to get up against the wall. The police asked him if he had any sharp objects on his person and he indicated he had marijuana, which the police removed. According to defendant, the police searched numerous individuals for a period of approximately 20-30 minutes in the parking lot. The trial court overruled the motion to suppress and the case proceeded to jury trial. At trial, Detective Barrow testified substantially as described above and two other detectives described their role in the events at the deli. Defendant testified on his own behalf as described above. Gizele Austin also testified for the defense. - 4 - She testified that she was at Damon's Deli around 8:00 p.m. on October 10, 1994. She went in to buy cigarettes and was inside the deli approximately five minutes. There were approximately five to six people outside the deli when she left. She began to speak to an individual (not defendant) who agreed to give her a ride home. She walked over to the other parking lot to get into his car but the door was locked. She came back to get the keys, but before she could get the keys, the police pulled up. They detained all of the people in the parking lot including her. The police asked if anybody had any drug paraphernalia or similar items. She testified that nobody showed her anything in the parking lot and that she had only about thirty cents on her when she was at the deli. She observed the defendant by his bicycle but stated that he never approached her and showed her anything in his hand. She also testified that she did have a crack pipe on her in a cigarette package. The jury returned a guilty verdict as to defendant's possession of crack cocaine and this timely appeal ensued. We will address defendant's assignments of error in the order asserted and together where convenient for discussion. I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION TO SUPPRESS. The scope of our review on a motion to suppress was set forth by this Court in State v. Curry (1994), 95 Ohio App.3d 93, 96: In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and - 5 - evaluate witness credibility. State v. Clay (1973), 34 Ohio St.2d 250, 63 O.O.2d 391, 298 N.E.2d 137. A reviewing court is bound to accept those findings of fact if supported by competent, credible evidence. See State v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54. However, without deference to the trial court's conclusion, it must be determined independently whether, as a matter of law, the facts meet the appropriate legal standard. State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906, 908. In Terry v. Ohio (1968), 392 U.S. 1, the United States Supreme Court held that a police officer may stop and investigate unusual behavior, even without probable cause to act, when he reasonably concludes that the individual is engaged in criminal activity. In justifying that conclusion, the officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion." Id. at 21. The circumstances are to be viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold. State v. Freeman (1980), 64 Ohio St.2d 291, 295. As the Supreme Court stated in State v. Williams (1990), 51 Ohio St.3d 58, 61: The standard for reviewing such police conduct is an objective one: "would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?" Terry, supra at 21-22; United States v. Wright (C.A.8, 1977), 565 F.2d 486, 489. That is, "[a]n investigatory stop must be justified by some objective, manifestation that the person stopped is, or is about to be, engaged in - 6 - criminal activity." United States v. Cortez (1981), 449 U.S. 411, 417. See, also, State v. Andrews (1991), 57 Ohio St.3d 86, 87. In the instant case, the court obviously found at the suppression hearing that there was sufficient justification for the officers detaining and arresting the defendant. According to Detective Barrow, he was observing a drug transaction in an area notorious for such activity. The defendant and his female customer were engaged in the customary posture of such a sale. The officers had legitimate reason to approach. According to Barrow's testimony, when defendant saw them, he threw two rocks of crack cocaine on the ground and attempted to flee on his bike. The female walked away quickly. The officers had probable cause to apprehend defendant based on these observations and we must defer to the trial court's finding based on the credibility of Detective Barrow and defendant. Assignment of Error I is overruled. II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT ADMITTED THE ALLEGED CRACK COCAINE INTO EVIDENCE WHEN THERE WAS A FAILURE TO SHOW A CHAIN OF EVIDENCE. Defendant argues that the State failed to sustain its burden of proving a reliable chain of evidence, i.e., the custody of the crack cocaine. We find no merit to this assignment of error. Chain of custody objections go to the weight of the evidence not to its admissibility. State v. Richey (1992), 64 Ohio St.3d 353, 360; State v. Blevins (1987), 36 Ohio App.3d 147. - 7 - As this Court held in In re Lemons (1991), 77 Ohio App.3d 691, 693: The state bears the burden of establishing the proper chain of custody; however, it is not an absolute duty. State v. Moore (1973), 47 Ohio App.2d 181, 183. In order to meet its burden, the state need only prove that it is "reasonably certain that substitutions, alteration or tampering did not occur." Id. Moreover, a chain of custody can be established by direct testimony or by inference. State v. Conley (1971), 32 Ohio App.2d 54, 60. The issue of whether there exists a break in the chain of custody is a determination left up to the trier of fact. Columbus v. Marks (1963), 118 Ohio App. 359. Any breaks in the chain of custody go to the weight of the evidence afforded to the evidence, not to its admissibility. Id. There was ample evidence from which the jury could judge the reliability of the chain of custody in the instant case. The State established the chain of custody through the testimony of the detectives. Detective Barrow found the discarded drugs on the ground and turned the two rocks of cocaine over to Detective Darryl for safekeeping. Detective Darryl explained how the drugs were handled after being retrieved at the scene. (Tr. 218-222). He gave a detailed account of how the drugs were placed in an evidence bag, marked and sealed in the bag. The items were transferred to the various units in the Cleveland Police Department and he testified that the drugs that were viewed in court were in the same evidence bag in which he placed them and identified by his badge number. The State satisfied its prima facie requirement to show a proper chain of custody and there was sufficient evidence - 8 - from which the jury could find with reasonable certainty that no substitution or tampering occurred in the handling of the evidence. It was for the jury to judge the merits of the chain of custody. Assignment of Error II is overruled. III. DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW WHEN THE COURT ALLOWED EXTENSIVE TESTIMONY CONCERNING THE FACT THAT MARIJUANA WAS FOUND ON THE PERSON OF THE DEFENDANT. IV. DEFENDANT WAS DENIED A FAIR TRIAL WHEN HE WAS IMPROPERLY AND EXTENSIVELY QUESTIONED BY THE PROSECUTOR CONCERNING MARIJUANA AND IRRELEVANT MATTERS. V. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT ADMITTED INTO EVIDENCE THE LABORATORY ANALYSIS WHICH REFERRED TO MARIJUANA. In defendant's assignments of error numbered III, IV and V, he asserts that the trial court erred in allowing the prosecution to introduce into evidence testimony regarding the large marijuana cigar or "joint" found on his person, thereby prejudicing his defense to drug possession. Defendant's argument is not persuasive. At the pre-trial suppression hearing, the trial court refused to suppress the crack cocaine defendant discarded and the marijuana found on his person. At trial, on the State's case-in-chief, the trial court refused to allow the police to testify to defendant's statement about marijuana when he was stopped by the police. The court disallowed this statement due to the State's failure to provide the statement pursuant to defendant's discovery request. However, when defendant took the stand, the trial court did allow - 9 - the prosecution to elicit testimony from defendant himself concerning the marijuana possession over objection. (Tr. 313, 319, 322). The court further allowed into evidence the bag containing the cocaine, marijuana and the lab report analyzing same. Defendant argues that the introduction into evidence of the marijuana and the facts surrounding the discovery were "evidence of other bad acts" and was improper and prejudicial. We disagree. Evid. R. 404(B) provides that: Evidence of the other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. This rule of evidence is codified in R.C. 2945.59 which provides: In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant. "Other acts" evidence is relevant and therefore admissible if it tends to show other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. State v. Lowe (1994), 69 Ohio - 10 - St.3d 527, 530; State v. McCornell (1993), 91 Ohio App.3d 141; State v. Broom (1988), 40 Ohio St.3d 277, paragraph one of the syllabus. Evidence of "other acts" is not admissible to show a defendant's propensity or inclination to commit an offense. State v. Curry (1975), 43 Ohio St.2d 66. Other or "bad acts" testimony or evidence is also admissible, even though it also tends to reflect on defendant's character, where the other acts are inextricably related to the offenses charged. See State v. Lorraine (1993), 66 Ohio St.3d 414, 421 (evidence of other crimes committed by the accused on the same night of the murders is admissible when the criminal acts are related to the murders). Further, in United States v. Thomas (C.A.6, 1996), 74 F.3d 676, the court held that it was not an abuse of discretion to allow testimony concerning uncharged drug transactions involving defendant where the evidence was offered to substantiate the defendant's identity as the perpetrator of the charged offense. In the case below, the defendant testified that he went to Damon's Deli to purchase some beer. He further testified that the only reason he was outside the store was to flag down a customer who had left a belonging in the store. Defendant denied that he was at the store to sell or purchase drugs. In our view, the evidence of the contemporaneous possession of marijuana was relevant to show that defendant was at the location to purchase or sell illicit drugs. Also, the evidence shows the absence of - 11 - mistake that defendant was involved in the sale or possession of a controlled substance. This is not a situation where the State is raising a past drug conviction or incident to show that defendant is a drug abuser or a bad person. The marijuana was found immediately following the defendant's abandonment of the two rocks of crack cocaine. The evidence of defendant's possession of the marijuana was inextricably related to the events that led to defendant's arrest for possession of crack cocaine. Assignments of Error III, IV and V are overruled. VI. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE JURY WAS TO JUDGE THE TESTIMONY OF THE DEFENDANT IN A MANNER DIFFERENT FROM OTHER WITNESSES. Contrary to the defendant's argument, the trial court did not instruct the jury to treat defendant's testimony differently than other witnesses. The language of the court that the jury should take into consideration defendant's interest in the outcome of the case is consistent with all of the instructions of the court, i.e., consider the bias, motive or interest of the witness. In fact, in this case, the court went to great lengths to fairly explain how a jury may judge the credibility of witnesses. (Tr. 357-63). As to general credibility of witnesses, the court stated: Does the witness have any interest or bias or motive? Or does the witness come to the trial here without any interest, bias or motive which would have influence or affected the person's testimony. * * * - 12 - If a witness gave a statement that was inaccurate, what would be the reasons for that? You should ask whether the misstatement was intentional. Was it accidental? *** (Tr. 360). In addressing the testimony of the defendant, the court stated: The defendant has testified as a witness in this case. You must also weigh his testimony in the same manner as you would weigh the testimony of any other witness who appeared on the case. Just because he is the defendant is not a reason for you to automatically disregard and set aside his testimony, but you should give his testimony the weight it is entitled to receive, taking into consideration his interest in the outcome of a case. (Tr. 363). The court did not treat the testimony of the defendant differently than any other witness. In fact, the opposite is true. The jury was cautioned to treat defendant's testimony like anybody else. State v. Drake (Oct. 28, 1993), Cuyahoga App. No. 63964/63965, unreported. We find no merit and overrule Assignment of Error VI. VII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTIONS FOR JUDGMENT OF ACQUITTAL. 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: - 13 - 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 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. If the State's evidence was believed, there was sufficient evidence upon which the jury could find defendant guilty of the crime of drug abuse, i.e., possession of crack cocaine. Detective Barrow testified that he observed him throw two white objects to the ground which turned out to be crack cocaine when retrieved by Barrow. There was ample testimony which would cause a reasonable - 14 - person to believe that the defendant was knowingly in possession of crack cocaine. Assignment of Error VII is overruled. VIII. DEFENDANT WAS DENIED DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAW WHEN HE WAS FINED EVEN THOUGH HE WAS AN INDIGENT PERSON. We find merit to this assignment of error. Because the court sentenced defendant to probation and held it was a requirement of that probation that he attempt to find a job, the court held it was reasonable to believe that over time defendant would be able to pay the mandatory fine prior to the termination of his probation. At the time of sentencing, defendant was unemployed and his affidavit of indigency prior to sentencing was unopposed. The State expressly agreed that, if at the time defendant's probation is terminated and he has still not been able to secure employment and pay the fine, that the fine would not be imposed. We find that the trial court abused its discretion in imposing the fine in futuro given defendant's indigency. See R.C. 2925.05(L) and State v. Pendleton (1995), 104 Ohio App.3d 785, 788: Merely because an offender has filed an affidavit of indigency with the court does not automatically mean that person is indigent. The court must make a finding that the defendant is in fact indigent. State v. Neubert (Nov. 8, 1989), Hamilton App. Nos. C- 880674 and C-880663, unreported, 1989 WL 133529. In this case, the trial court made its finding that defendant was not indigent because he was able to hire retained counsel. The record reflects that counsel was retained for the defendant by his stepfather. The court announced before the indigency hearing that "[w]hen attorneys are retained, I impose the - 15 - fine. If it's a public defender case I don't." We hereby expressly disapprove this policy. See State v. Emrich (Mar. 10, 1995), Clark App. No. 94-CA-0005, unreported, 1995 WL 102891 ("[A] defendant's hiring of private counsel to defend against certain drug offenses is not determinative of his lack of indigency for the purpose of imposing a mandatory fine."). The state argues that the evidence before the court was sufficient to show that defendant had the financial means to pay the fine. We disagree. The evidence before the court was wholly uncontroverted that the defendant was then unable to pay the fine. We agree with the court of appeals in State v. Lefever (1993), 91 Ohio App.3d 301, 309, 632 N.E.2d 589, 590, that the mere possibility that the offender may be able to pay the fine in the future, or pay it in the future in installments, is not a proper basis on which to find that a defendant is not indigent. See, also, Adkins, supra. See, also, State v. Lefever (1991), 91 Ohio App.3d 301, 309 ("[A] trial court may not properly use the mere possibility of an offender's future ability to pay a fine as the basis for determining that the imposition of that fine is not prohibited by R.C. 2925.03(L)"). This Court has followed this line of authority as evidenced by our recent decision in State v. Ruzicka (Jan. 13, 1994), Cuyahoga App. No. 64476, unreported at 3-4: The authority of a trial court to impose a monetary fine is controlled by R.C. 2925.03(L) which provides: (L) No court shall impose a mandatory fine pursuant to division (H) of this section upon an offender who alleges in an affidavit filed with the court prior to sentencing that he is indigent and is unable to pay any mandatory fine imposed pursuant to that division, if the court determines that the offender is an - 16 - indigent person and is unable to pay the fine. (Emphasis added). This court has previously held that a trial court shall not impose a mandatory fine where the defendant, prior to sentencing, files an affidavit with the trial court which states that the [sic] he or she is indigent and unable to pay any mandatory fine imposed pursuant to R.C. 2925.03(H). State v. Pursell (May 30, 1991), Cuyahoga App. No. 58603, unreported; State v. Porter (July 19, 1990), Cuyahoga App. No. 57251, unreported. Moreover, it is our reasoned opinion that a trial court abuses its discretion by imposing a mandatory fine where the defendant's affidavit of indigency remains unopposed and the appellate record does not contain sufficient evidence to support a conclusion that the defendant was able to pay the fine. Assignment of Error VIII is sustained. IX. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT PROCEEDED TO SUSPEND DEFENDANT'S DRIVER'S LICENSE AS A PROVISION FOR SUSPENDING A DRIVER'S LICENSE IN A DRUG OFFENSE ARE UNCONSTITUTIONAL AS APPLIED IN THIS CASE. Defendant contends the trial court erred in suspending his driver's license for one year as a condition of probation. Defendant argues that the possession of cocaine crime of which he was found guilty had nothing to do with an automobile or driving same. Defendant claims that R.C. 2925.11(F)(1), in effect at the time of defendant's sentencing, is unconstitutional. R.C. 2925.11(F)(1) provides: In addition to any other penalty imposed for a violation of this section, the court shall suspend for not less than six months nor more than five years the driver's or commercial driver's license of any person who is convicted - 17 - of or has pleaded guilty to a violation of this section. Pursuant to this statute, as amended in September 1993, the trial court was mandated to suspend defendant's driver's license for at least six months. Essentially, defendant contends that the mandatory license suspension imposed by the legislature in R.C. 2925.11(F)(1) bears no rational relationship to the drug offense charged and is violative of his right to due process and equal protection under the Fourteenth Amendment of the United States Constitution. Defendant's argument lacks merit. On June 5, 1996, the Ohio Supreme Court disposed of the identical arguments that defendant presses on this assignment of error. In State v. Thompkins (1996), 75 Ohio St.3d 558, the Court held in its syllabus: R.C. 2925.03(M), 2925.11(F)(1) and 2925.23(H) do not violate the due process or equal protection provisions of the Ohio or United States Constitutions. The arguments which defendant advances herein are expressly or impliedly rejected by the Supreme Court in its opinion and it is unnecessary for us to add further to that exposition. Assignment of Error IX is overruled. Judgment affirmed in part and reversed in part. - 18 - It is ordered that appellant and appellee equally share the 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 Court of Common Pleas to carry this judgment into execution. 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., CONCURS. PATTON, J., CONCURRING IN PART AND DISSENTING IN PART. (See concurring and dissenting opinion attached) 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 time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69409 STATE OF OHIO : : CONCURRING AND DISSENTING Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION NATHANIEL GIPSON : : Defendant-appellant : : DATE: JULY 3, 1996 PATTON, J., CONCURRING IN PART AND DISSENTING IN PART: Although I concur with the court's affirmance of defendant's conviction, I must respectfully dissent from the disposition of the eighth assignment of error. I find the trial judge did not abuse his discretion by imposing the mandatory fine since he could reasonably find defendant did not timely file his affidavit of indigency and further could find the totality of the circumstances weighed in favor of rejecting defendant's affidavit of indigency and imposing the mandatory fine. The public policy of this state, expressed in the criminal sentencing statutes, requires persons convicted of drug offenses to be held accountable for their crimes by paying mandatory fines. See State v. Cravens (1988), 42 Ohio App.3d 69, 72-73. Since the mandatory fines provision expresses public policy, we should not lightly disregard that policy. To that end, the courts must impose mandatory fines unless the offender affirmatively shows an - 2 - inability to pay the fine. Stated differently, the courts are under no obligation to make a finding that an offender is able to pay; rather, the courts are required to find the offender is indigent and unable to pay. State v. Powell (1992), 78 Ohio App.3d 784, 790. Indigency may be established by an affidavit, although the affidavit is not the sine qua non of inability to pay. See State v. Pendleton (1995), 104 Ohio App.3d 785, 788. Hence, an offender may be found indigent for purposes of retaining trial counsel, but that finding does not compel a finding of inability to pay a fine following conviction. State v. Williams (1995), 105 Ohio App.3d 471, 483; State v. Lefever (1993), 91 Ohio App.3d 301, 308. R.C. 2925.03(L) provides: "(L) No court shall impose a mandatory fine pursuant to division (H) of this section upon an offender who alleges, in an affidavit filed with the court prior to his sentencing, that he is indigent and unable to pay any mandatory fine imposed pursuant to that division, if the court determines that the offender is indigent person and is unable to pay the fine." (emphasis added). Defendant did not file his affidavit of indigency with the trial court prior to sentencing. In fact, defendant did not file his motion to abate the fine until eight days after sentencing. Although the transcript of the sentencing shows defendant offered an affidavit at that time, he did not file that affidavit in compliance with the statute. "Filing" for purposes of the statute requires the clerk of the court to indorse the time of filing on - 3 - each pleading or filing. R.C. 2303.08; Ferrebee v. Boggs (1969), 18 Ohio St.2d 87; In re Hopple (1983), 13 Ohio App.3d 54. Because the affidavit was not timely filed, the trial judge should not have considered the affidavit in the first instance. The trial judge did, however, consider the affidavit and rejected it on the basis of important facts not mentioned by the majority, and facts not before the court at the time of sentencing. First, the trial judge found defendant discharged the public defender as counsel and retained and paid for his own attorney. In fact, that same attorney continues to represent defendant on appeal. We have consistently found that an inability to retain counsel for trial is not dispositive proof of indigency. State v. Williams, supra; State v. Lefever, supra. Why, then, would we hold that a defendant with the means to retain counsel for trial (and for appeal as well) is indigent simply because he files an affidavit to that effect? It would be a curious irony if we were to hold that indigency for purposes of receiving appointed counsel was not a preclusive indication of poverty, but that poverty could be established solely by way of affidavit despite the fact that a defendant retained and paid his own trial counsel. Second, the trial judge did not impose a jail sentence, but instead placed defendant on probation to give him an opportunity to gain employment and earn money to pay off the fine. The trial judge sentenced defendant to a jail term of one year, suspended the sentence, placed defendant on probation for four years and ordered - 4 - him to pay the $1,000 fine. When defendant offered his affidavit, the trial judge noted that defendant, an able-bodied nineteen year old who previously held a job, was fully capable of finding employment, and in fact had been seeking employment. This is not a case where the court imposed a jail term and the mandatory fine on an unemployed offender with the expectation that the fine could be paid. See, e.g., State v. Gutierrez (1994), 95 Ohio App.3d 414. Moreover, this is not a case where the court relied on unsubstantiated proof contradicted by an unopposed affidavit. See e.g., State v. Ruzicka (Jan. 13, 1994), Cuyahoga App. No. 64476, unreported (trial court abused its discretion by rejecting an uncontroverted affidavit of indigency due to court's unsubstantiated belief that offender "could probably stand to inherit funds from family members."). Finally, a portion of the majority opinion relating to the state's "agreement" that defendant could be found indigent in the event he fails to pay the fine could be misconstrued; therefore, I respectfully wish to make the following clarification. The majority writes, "[t]he State expressly agreed that, if at the time defendant's probation is terminated and he still has not been able to secure employment and pay the fine, that the fine would not be opposed." Ante at 14. The context in which this statement appears in the majority opinion may give the impression the state made this "agreement" at the time of sentencing. No agreement was made and, in fact, the state made this statement in its appellate brief, not - 5 - at the time of sentencing. Because the question before us is whether the trial judge abused his discretion when rejecting the affidavit of indigency, we must consider only those facts present in the record at the time the trial judge made his decision. An abuse of discretion has been defined as a result "*** so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason, but rather of passion of bias." State v. Jenkins (1984), 15 Ohio St.3d 164, 222. I find nothing about the trial judge's actions in this case to show a perversity of will sufficient to constitute an abuse of discretion under the above-cited standard. The trial judge aptly noted: "[Defendant's] not going to be indigent for the rest of his life. He'll be on probation for four years. If he can't pay this money over the period of four years, there is something really wrong with him. He's six foot two, 200 pounds, nineteen years old. There ought to be a lot of jobs he can handle, so I don't see any reason why he can't pay this. ***" In short, defendant is an able-bodied young man with an employment history who can afford to hire trial and appellate counsel. By his own admission, the trial judge gave defendant "a break" by placing him on probation so he would have the opportunity to straighten out his life. Under the circumstances, I would find these facts amply supported the trial judge's decision to reject - 6 - .