COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69429 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION CHRISTOPHER SAPP : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : SEPT. 5, 1996 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 321210 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. James A. Draper, Esq. Cuyahoga County Prosecutor Cuyahoga County Public By: Daniel Schiau, Esq. Defender Assistant Prosecuting Atty. By: Jean M. Gallagher, Esq. The Justice Center Assistant Public Defender 1200 Ontario Street 1200 West Third Street, N.W. Cleveland, Ohio 44113 100 Lakeside Place Cleveland, Ohio 44113 -2- HARPER, J.: A Cuyahoga County Grand Jury issued a four-count indictment against defendant-appellant, Christopher Sapp, on March 23, 1995. Appellant was charged with knowingly preparing for shipment, shipping, transporting, delivering, preparing for distribution or distributing cocaine, with knowledge or reasonable cause to know the cocaine was intended for sale, R.C. 2925.03(A)(2); knowingly obtaining, possessing or using cocaine, R.C. 2925.11; carrying a concealed weapon, R.C. 2923.12; and having weapon while under disability, R.C. 2923.13. All four counts of the indictment carried violence specifications, and all but the third count carried a firearm specification. Appellant pled not guilty to all counts at his March 30, 1995 arraignment. Appellant filed a motion to suppress in the trial court on April 21, 1995. He argued that not only was the investigatory stop leading to his arrest illegal, but even if the stop was proper, the search of his person exceeded the limits pronounced in Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. The suppression motion came on for hearing in June 1995. The state of Ohio offered the testimony of two police officers whereas appellant offered his own testimony, as well as testimony from his companion on the evening in question. Detective Kelvin Barrow ("Det. Barrow"), an eight-year veteran of the Cleveland Police Department and a two-year member of the Fourth District Vice Unit, testified that he was on routine patrol on February 18, 1995 in the high-crime area of East 144th Street -3- and Kinsman Avenue. Detective John Anderson and Sergeant Barrow ("Sgt. Barrow") accompanied Det. Barrow. The officers wore plain- clothes and travelled in an unmarked car. Det. Barrow testified that as he drove westbound on Kinsman Avenue at approximately 9:45 p.m., he spotted two males "slow walking" eastbound. One male, later identified as appellant, held a plastic bag in his right hand. Both Dets. Barrow and Anderson saw the bag. According to Det. Barrow, he observed appellant, from a short distance away, show the contents of the bag to the other male who was later identified as Deon Jackson. Appellant manipulated the contents, white square objects, as he showed them to Jackson. The detective testified further that based upon his experience, he suspected that the plastic bag contained crack cocaine. Det. Barrow pulled the car to the curb. As the officers exited the car and identified themselves, appellant and Jackson continued walking away from them. Det. Barrow testified that before appellant walked away, he placed the plastic bag into his pocket. Det. Anderson, a three-year member of the vice unit, testified that once appellant and Jackson stopped, he patted-down appellant for the officers' safety. The detective felt what he believed to be a weapon in appellant's waistband. Appellant admitted to having a .380 handgun. Det. Anderson testified that he then removed the loaded weapon from appellant's person, and placed him under arrest for carrying a concealed weapon. -4- After appellant's arrest, according to both Dets. Barrow and Anderson, Sgt. Barrow conducted a search of appellant's person. The sergeant discovered a closed non-prescription plastic pill vial in appellant's right jacket pocket. Nineteen rocks of suspected crack cocaine were found inside the vial and later tested positive for the substance. Appellant testified that he and Jackson left a McDonald's Restaurant near to where they were approached by the officers at about 8:30 p.m. He carried a paper bag containing a couple bottles of beer and Jackson carried two McDonald's bags. About a minute after exiting the restaurant, appellant heard a voice and a car pull up. Appellant testified that he gave Jackson the bag of beer and walked toward the stopped vehicle. Appellant testified further that the front passenger, Det. Anderson, hopped out of the car and stated that he heard appellant was selling drugs. Appellant denied this accusation. The detective responded that they were going to "check him out" anyway and then let him go. Appellant testified that he and Jackson were instructed to put their hands on the car. Det. Anderson found appellant's gun at this point in his breast pocket, not waistband. Appellant denied that he admitted to the detective that he had the gun on his person. Appellant testified further that the following items were inside the pill vial: a piece of saran wrap containing powdered crack or "shake," and loose rocks of crack. He claimed that the contents were for his personal consumption and thus denied that he -5- ever showed the vial or its contents to Jackson that evening. Appellant's testimony, therefore, was that the officers did not see any rocks inside a plastic bag as testified to by them. Appellant also testified that he was not placed under arrest until he was placed inside the unmarked car. Finally, appellant testified that he was not immediately taken to the police station following his arrest. Rather, the officers drove around the neighborhood for up to an hour and a half, conducting up to fifteen random stops and searches. Jackson's testimony at the suppression hearing did not differ in any marked manner from that of appellant. Jackson confirmed the sequence of events, including the officers' statements. He also denied that he even knew appellant was a crack user. The trial court denied the motion to suppress on July 20, 1995, after which appellant entered pleas of no contest to the charges. The trial court accepted the pleas. Appellant was sentenced to three years of actual incarceration on the firearm specifications which were merged for sentencing, followed by concurrent terms of two to ten years on each of counts one through three, and one and one-half to five years on count four. This appeal followed with appellant claiming as error: Assignment of Error No. I: MR. SAPP'S RIGHTS UNDER SECT. 14, ART. I OF THE OHIO CONSTITUTION AND THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WERE VIOLATED WHEN HIS MOTION TO SUPPRESS WAS DENIED DESPITE THE FAILURE OF THE PROSECUTION TO PRESENT -6- THE SUBSTANTIAL EVIDENCE REQUIRED TO JUSTIFY THE WARRANTLESS SEIZURE AND SEARCH. Assignment of Error No. II: THE TRIAL COURT FAILED TO SUBSTANTIALLY COMPLY WITH CR.R. 11 WHEN THE TRIAL COURT DID NOT DETERMINE THAT MR. SAPP UNDERSTOOD THAT HE WAS NOT ELIGIBLE FOR PROBATION, AND THE NO CONTEST PLEA IS CONSTITU- TIONALLY INFIRM WHEN THE TRIAL COURT DID NOT DETERMINE THAT MR. SAPP UNDERSTOOD THAT HE WAS WAIVING THE RIGHTS TO CONFRONT WITNESSES, TO SUBPOENA WITNESSES, AND NOT TO INCRIMINATE HIMSELF. Assignment of Error No. III: THE CONVICTION FOR A VIOLATION OF R.C. 2925.11 IS IN VIOLATION OF R.C. 2941.25 AND A DENIAL OF MR. SAPP'S RIGHTS TO PROTECTION FROM DOUBLE JEOPARDY GUARANTEED BY ART. I, SECT. 10 OF THE OHIO CONSTI-TUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. Appellant's first assignment of error addresses the propriety of the trial court's denial of his motion to suppress. He presents a dual argument as to why the trial court erred in its ruling. First, the investigative stop was not supported by specific and articulable facts because the court improperly found that the stop was justified by the mere observation of "something" in appellant's hand. Second, even if the stop was proper, the pat-down was not warranted under the Terry guidelines because the investigating officers did not hold a reasonable suspicion that appellant was armed and dangerous, but rather conducted the search only for suspected drug possession. A trial court assumes the role of trier of fact when faced with a motion to suppress. Since the court is in the best position to resolve questions of fact and evaluate the credibility of -7- witnesses, a reviewing court is bound to accept its findings if they are supported by competent, credible evidence. See State v. Schiebel (1990), 55 Ohio St.3d 71; State v. DePew (1988), 38 Ohio St.3d 275; State v. Clay (1973), 34 Ohio St.2d 250. However, without deference to the trial court's conclusion, we must independently determine whether, as a matter of law, the facts meet the appropriate legal standard. See State v. Bradley (1995), 101 Ohio App.3d 752; State v. Curry (1994), 95 Ohio App.3d 93; State v. Claytor (1993), 85 Ohio App.3d 623. A police officer must have a reasonable suspicion supported by articulable facts that criminal activity is imminent in order to justify an investigative stop and search under Terry. Terry, 392 U.S. at 21, 88 S.Ct. at 1880. Under the totality of the circumstances approach adopted by this state, a court must consider the "whole picture" in determining the reasonableness of an investigative stop and search. See State v. Andrews (1991), 57 Ohio St.3d 86; State v. Williams (1990), 51 Ohio St.3d 58; State v. Bobo (1988), 37 Ohio St.3d 177. Trial courts must also give due deference to the investigating officers' experience and training when considering the totality of the circumstances. Andrews, 88. The totality of the circumstances must be viewed through the eyes of a reasonable and prudent police officer. Id., 87-88; State v. Freeman (1980), 64 Ohio St.2d 291, 295. A reviewing court must furthermore recognize that under the totality of the circumstances, wholly lawful conduct, when taken together with other factors or circumstances, may amount to reasonable suspicion that criminal -8- activity is imminent. United States v. Sokolow (1989), 490 U.S. 1, 9, 109 S.Ct. 1581, 1586, 104 L.Ed.2d 1. In the present case, Dets. Barrow and Anderson and Sgt. Barrow were patrolling in a high crime area during the evening. Both Det. Barrow and Anderson were members of their vice unit for a number of years with drug arrest experience. Det. Barrow and then Anderson observed appellant standing with Jackson, holding a plastic bag with visible white contents. As the officers' vehicle was pulled to the curb, and they identified themselves, appellant and Jackson continued to walk away, with appellant putting the plastic bag inside his pocket. Det. Barrow specifically testified that appellant's actions led him to believe that crack cocaine was inside the bag. On the basis of the detectives' testimony and the totality of the circumstances, there were sufficient articulable facts upon which to base an investigatory stop of appellant. Williams; Bobo. Appellant cites to several cases from this court to support his argument that there were insufficient articulable facts upon which to base an investigatory stop. These cases are: State v. Eppinger (1991), 74 Ohio App.3d 504; State v. Rucker (1990), 63 Ohio App.3d 762; State v. Mincey (Dec. 27, 1990), Cuyahoga App. No. 59913, unreported; and State v. Hewston (Aug. 2, 1990), Cuyahoga App. No. 59095, unreported. All of these cases are distinguishable from the present case based upon the strength of the state's evidence. -9- In Eppinger, investigating officers observed what appeared to be some kind of exchange between the defendant and other males in a school yard. The officers did not know, for one, whether there was an exchange. Second, the officers did not see what was being exchanged even if an exchange was imminent. Here, there was specific testimony that appellant was holding a plastic bag with suspected crack cocaine, and that he was showing the bag to Jackson. This latter testimony far surpasses that introduced in Eppinger. The evidence in Rucker and Hewston was just as nondescript as that in Eppinger. The defendants were possibly exchanging or passing "something" to a companion. The "something" in the present case was observed and later described by the investigating officers, with an explanation as to how they were led to believe the plastic bag contained contraband. In Mincey, the arresting officers merely saw the defendant and two males with their hands extended. Not only did they not observe anything pass between the males, the officers did not even see anything in their possession. Mincey is thus not persuasive authority in the present case. Finally, appellant directs this court's attention to Det. Barrow's testimony, specifically with regard to the justification for the investigatory stop. Appellant suggests that the detective augmented his testimony through the hearing to conveniently support the stop. Appellant thus intimates that the trial court should not have believed Det. Barrow's testimony. The trial court, however, -10- was free to accept or reject any witness' testimony, including that of the detective. Schiebel; Clay. Once the officers made a reasonable investigative stop, they properly initiated a protective search for themselves if they had a reasonable suspicion that appellant was armed. Terry, 392 U.S. at 27, 88 S.Ct. at 1883; Bobo, paragraph two of the syllabus. The purpose of this limited protective search is to allow a police officer's investigation to proceed without fear of violence, not to allow the discovery of evidence of a crime. State v. Evans (1993), 67 Ohio St.3d 405, 408, certiorari denied, U.S. , 114 S.Ct. 1195, 127 L.Ed.2d 544, citing Adams v. Williams (1972), 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617; see Smith v. Ohio (1990), 494 U.S. 541, 110 S.Ct. 1288, 108 L.Ed.2d 464 and Sibron v. New York (1968), 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (incident search may not precede arrest and serve as part of its justification). In the present case, Det. Barrow testified that once appellant placed his hand in his pocket upon the officers' arrival, he did not remove it. The pat-down of appellant by Det. Anderson thus occurred out of fear for the officers' safety. Under these circumstances, the officers possessed a reasonable suspicion that appellant was armed, and the patdown for weapons was within the constitutionally permissible range of Terry and its progeny. Appellant once again cites cases from this court to support his argument that the officers did not possess a reasonable suspicion that he possessed a weapon. The cases are State v. Brown -11- (1992), 83 Ohio App.3d 673; State v. Wells (1990), 68 Ohio App.3d 648; and Rucker. A review of these cases reveals their dissimilarity to the case at hand. In all three of the cited cases, there was no evidence of any criminal activity, nor any independent evidence that the defendant was armed when stopped by the police officers. Such is not the case with appellant as he was suspected of criminal activity, activity that was succinctly described by the detectives, and of possession of a weapon in the pocket in which he had his hand. "[I]t 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." Terry, 392 U.S. at 24, 88 S.Ct. at 1881. This court is bound to accept the trial court's decision regarding appellant's motion to suppress if the record provides competent, credible evidence in support of the decision. Schiebel; DePew; Clay. Based upon our independent review of the evidence, the trial court properly denied appellant's motion. Id; Bradley. Appellant's first assignment of error is overruled. Appellant, in the second assignment of error, submits that the trial court failed to substantially comply with Crim.R. 11(C) in accepting his no contest pleas, and, moreover, that the pleas are constitutionally infirm. Specifically, appellant asserts that the court failed to determine whether he understood that he was not eligible for probation, and that he was waiving his rights to -12- confront witnesses, to subpoena witnesses, and not to incriminate himself. Crim.R. (11)(C)(2) provides: In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and: (a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation. (b) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself. Reviewing courts, in determining whether a no contest plea is voluntarily, intelligently and knowingly made, look to the totality of the circumstances. State v. Calvillo (1991), 76 Ohio App.3d 714, 719, citing State v. Carter (1979), 60 Ohio St.2d 34; see State v. Nero (1990), 56 Ohio St.3d 106. Literal compliance with Crim.R. 11(C) as to the non-constitutional provisions is preferred, but not required, since the rule does not require the vacation of a no contest plea if the reviewing court finds substantial compliance. See Nero; State v. Colbert (1991), 71 Ohio App.3d 734. A trial court substantially complies with the rule where under the totality of the circumstances, the defendant subjectively understands the rights he is waiving and the consequences of the plea. Nero, 108. Herein, appellant first asserts that substantial compliance with Crim.R. 11(C)(2) does not exist because he was not informed of -13- his ineligibility for probation. The requirement of the rule with regard to the probation issue is satisfied upon substantial compliance. Id.; State v. Stewart (1977), 51 Ohio St.2d 86. The prosecutor in this case stated during the plea hearing that the firearm specifications included in appellant's indictment required three-year terms of actual incarceration. Appellant's counsel also stated at the hearing that he spoke with appellant about the consequences of the denial of the motion to suppress, and explained the plea proceedings. Appellant was even aware that his current probation status could be revoked as a result of the charges in the indictment at issue. Despite the trial court's failure to expressly address appellant's eligibility for probation, this court nonetheless finds substantial compliance under Crim.R. 11(C)(2). Compare, Colbert and State v. May (1989), 64 Ohio App.3d 456 (substantial compliance not present when defendant is led to believe probation is a possibility even though it is not under the charged offense). The issue remaining is whether the trial court personally informed appellant of the constitutional guarantees he waived by entering the no contest pleas. In order to conclude that appellant voluntarily entered the pleas, the record must show that he knowingly waived the Fifth Amendment privilege against compulsory self-incrimination, right to trial by jury, and right to confront witnesses. Boykin v. Alabama (1969), 385 U.S. 238, 242, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274. -14- The trial court, after advising appellant that he was giving up his right to trial by jury by entering a plea, provided the following information. First, "you have the right to confront each and every witness that the State of Ohio would produce at trial who would be testifying against your interests." Second, "you can subpoena witnesses to come to court to testify for you at trial." Finally, "*** at *** trial, nobody can force you to testify against yourself." The trial court asked appellant if he understood the meaning of each of these statements. Appellant responded in the affirmative, and nothing in the record indicates any misunderstanding. Appellant's claim that he was not advised of the constitutional rights he was waiving upon his plea is thus not supported by the record. Appellant's second assignment of error is accordingly overruled. Appellant's final assignment of error concerns his convictions for drug trafficking, R.C. 2925.03(A)(2), and drug abuse, R.C. 2925.11. He argues that R.C. 2925.11, is an impermissible allied offense of similar import of R.C. 2925.03(A)(2), thereby requiring a vacation of the drug abuse conviction regardless of whether the issue was raised in the trial court. The state does not challenge the validity of appellant's argument. Initially, as noted by appellant, he failed to raise an allied offense of similar import argument in the trial court. This court is firm in its position that pursuant to State v. Comen (1990), 50 Ohio St.3d 206, this claimed error is waived when it is not raised -15- in the trial court. See, e.g., State v. Powell (1993), 87 Ohio App.3d 157; State v. Parker (Dec. 7, 1995), Cuyahoga App. No. 68054, unreported; State v. Williams (July 20, 1995), Cuyahoga App. Nos. 67848, 67849, unreported; State v. Gilbert (Sept. 22, 1994), Cuyahoga App. No. 66269, unreported. Assuming arguendo the finding of waiver is inapposite with recent decisions of the Supreme Court of Ohio, State v. Huertas (1990), 51 Ohio St.3d 22, certiorari dismissed (1991), 498 U.S. 336, 111 S.Ct. 805, 112 L.Ed.2d 837, and State v. Hawkins (1993), 66 Ohio St.3d 346, certiorari denied, 114 S.Ct. 486, S.Ct. , L.Ed.2d , appellant's assignment is nonetheless without merit. This court previously rejected an argument that an offense of possession of drugs in violation of R.C. 2925.11 is allied with the offense of drug trafficking in violation of R.C. 2925.03(A)(2). State v. Daanish (Jan. 6, 1994), Cuyahoga App. No. 64514, unreported; see State v. Cordero (July 23, 1992), Cuyahoga App. No. 61030, unreported (offense of possession of drugs, R.C. 2925.11 is not allied with the offense of drug trafficking, R.C. 2925.03(A)(6); but, see, In the Matter of Coleman (Dec. 30, 1993), Cuyahoga App. No. 65459, unreported (even though convictions for drug abuse and drug trafficking were based on same type and quantity of drugs, and sentences on both would be improper, record failed to demonstrate sentencing on both convictions). We apply the same reasoning to cases involving multiple convictions under R.C. 2925.03(A)(2) and (A)(6). See, e.g., Powell; State v. Jordan (1992), 73 Ohio App.3d 524; State v. Burson (Feb. 1, 1996), -16- Cuyahoga App. No. 68544, unreported; State v. Parker (Dec. 7, 1995), Cuyahoga App. No. 68054, unreported; State v. Marshall (Aug. 3, 1995), Cuyahoga App. No. 66409, unreported; Williams; State v. Pall (Sept. 12, 1991), Cuyahoga App. No. 59232, unreported; State v. Mateo (Aug. 17, 1989), Cuyahoga App. No. 55833, unreported, reversed in part and affirmed in part on other grounds (1991), 57 Ohio St.3d 50. The Mateo court determined that R.C. 2925.03(A)(2) and (A)(6) were not allied under R.C. 2941.25(A) since the offense of trafficking "imposes the additional element that possession of the controlled substance is incident to preparation for shipment, transportation, delivery or distribution of the drug through a sale." Mateo, 5. Under the allied offense of similar import test of Newark v. Vazirani (1990), 48 Ohio St.3d 81, the two charges do not correspond to a sufficient degree that the commission of one will result in the commission of the other. The same is true in the present case as was recognized in Daanish: [I]s is apparent that in comparing the elements of drug possession in R.C. [Section] 2925.11, and trafficking in drugs in R.C. [Section] 2925.03(A)(2), they do not correspond to such a degree that the commission of one will necessarily result in the commission of the other. The elements of drug possession and drug trafficking do not so correspond. One may be in possession of drugs, but not in the act of trafficking. [A]s most recently stated by this Court in Powell at 171: "*** a defendant may be convicted and sentenced for both the possession and trafficking of the same physical quantity of drugs, even if there is no evidence demonstrating a completed drug sale, when there is sufficient evidence that defendant committed any of the -17- elements of drug trafficking incident to an aborted sale." *** Finally, this court in Jordan recognized the conflict in case law between our jurisdiction and others. Jordan, 542. A case cited by appellant, State v. Jennings (1987), 42 Ohio App.3d 179, is one of these conflicting cases. See, also, State v. Marshall (Sept. 10, 1990), Warren App. No. CA89-12-074, unreported; State v. Carter (Dec. 19, 1990), Hamilton App. No. C-890787, unreported. The Jennings court held that a defendant may be indicted for both a sale and possession, but if the charges stem from a single transaction involving the same type and quantity of drugs, and the defendant did not possess any quantity greater than the amount sold, there can be only one conviction under R.C. 2941.25(A). Id., 183. "Despite this conflict in case law, we are bound to follow precedent within our district." Jordan, 542. Appellant's third assignment of error is overruled. Judgment affirmed. -18- 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 Cuyahoga County 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. ANN DYKE, J., AND TERRENCE O'DONNELL, J., CONCUR. PRESIDING JUDGE SARA J. HARPER N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 25(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .