COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69579 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION KEVIN MCINTYRE : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 19, 1996 CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court No. CR-302592 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES CHARLES M. MORGAN, JR. Cuyahoga County Prosecutor 11510 Buckeye Road ANTHONY J. BONDRA, Assistant Cleveland, Ohio 44104 8th Floor - Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - O'DONNELL, J.: Kevin McIntyre appeals from a judgment of the Common Pleas Court entered pursuant to a jury verdict finding him guilty of trafficking drugs in violation of R.C. 2925.03. After considering appellant's assignments of error, we find no merit and therefore affirm this conviction. In September of 1994, Detective Thomas Roper of the Cleveland Police Narcotics Unit received information about drug sales from a residence at 1347 E. 124th Street in Cleveland, Ohio. Relying on this information, Detective Roper contacted a reliable informant who purchased cocaine on three separate occasions at this residence. In each instance, she told appellant that she wanted cocaine, and McIntyre then entered this residence, and returned with his brother, Preston, who sold the cocaine to her on the front porch. Detective Roper witnessed each transaction from inside a vehicle parked on E. 124th. On October 6, 1994, when Detective Roper executed a search warrant on the residence, he arrested appellant, who was later indicted by the grand jury. At trial, the state presented only the testimony of Detective Roper and the court denied a defense request to disclose the identity of the informant. In defense, both McIntyre and his brother testified that appellant was not involved and did not assist in the drug sales. However, the jury - 3 - found McIntyre guilty in connection with the October 5, 1994 sale but not guilty relating to the September 24 and 27th, 1994 sales. McIntyre now appeals and assigns four errors for our review. McIntyre' first assignment of error states: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING DEFENDANT-APPELLANT'S MOTION TO DISCLOSE THE IDENTITY OF THE CONFIDENTIAL RELIABLE INFORMANT, THEREBY VIOLATING HIS SIXTH AMENDMENT RIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSES AGAINST HIM. McIntyre contends that the trial court should have ordered the state to disclose the identity of the confidential reliable informant because the informant's testimony established the elements of the drug trafficking offense and further that knowledge of the informant's identity would assist him in establishing his defense. The state maintains that the trial court did not err in denying McIntyre's motion because Detective Roper, who witnessed the October 5, 1994 transaction, testified at trial and, therefore, since the prosecutor did not use the informant at trial, the state is not obligated to reveal the informant's identity. The issue for our review is whether trial court erred in denying McIntyre's motion to disclose the identity of the confi- dential reliable informant. - 4 - The Supreme Court in State v. Williams (1983), 4 Ohio St.3d 74, stated in its syllabus: Identity of an informant must be revealed to a criminal defendant when the testimony of the informant is vital to establishing an element of the crime or would be helpful or beneficial to the accused in preparing or making a defense to criminal charges. In that case, a police officer, who had arranged a drug purchase using an informant after receiving information of drug activity, viewed the entire transaction from inside a restaurant, and testified at trial. The defendant in Williams, supra, sought disclosure of the informant's identity. The Supreme Court found that since the officer had viewed the entire transaction, the informant was not a witness of the prosecution or subject to cross-examination, and therefore held that the trial court properly denied the request to disclose the informant's identity. In this case, Detective Roper, likewise, observed the entire drug transaction and testified to the essential elements of the offense, therefore the informant was not a prosecution witness nor subject to cross-examination. Finally, as in Williams, supra, at 77, "we are not inclined to speculate on the relevance of the informant's testimony since the defense of entrapment was not raised at trial." Hence, the trial court did not err in denying the request to disclose the identity of the confidential reliable informant in this case. Accordingly, this assignment of error is overruled. - 5 - McIntyre's second assignment of error states: II. 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 DRUG TRAFFICKING. McIntyre asserts that the drug trafficking conviction is not supported by sufficient evidence because the prosecution did not prove that he sold cocaine on October 5, 1994 or that he aided or abetted such sale. The state contends that the court properly denied the motion for acquittal because the testimony of Detective Roper implicated appellant in each of these drug transactions. Here, then, the issue presented for our review is whether the court properly denied McIntyre's motions for acquittal. Crim. R. 29 provides in relevant part: *** The court *** shall order the entry of a judgment of acquittal *** if the evidence is insufficient to sustain a conviction of such offense ***. In State v. Martin (1983), 20 Ohio App.3d 172, the court at headnote two set forth the following test for determining whether a conviction is supported by sufficient evidence: In considering the claim that the conviction was not supported by sufficient probative evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, - 6 - any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. Here, the evidence revealed that on October 5, 1994, Detective Roper observed appellant engage the informant in conversation, walk with the informant to the premises, enter the home, and return with his brother who, in appellant's presence, physically made the drug sale. After construing the evidence most favorably to the state, in conformity with State v. Martin, supra, we conclude that the trial court properly denied the motions for acquittal because a rational trier of fact could have found that appellant aided his brother in the sale of cocaine, on October 5, 1994. Accordingly, this assignment of error is overruled. McIntyre's third assignment of error states: III. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN IMPOSING A SENTENCE DISPROPORTIONATE TO THE CRIME COMMITTED RESULTING IN A VIOLATION OF DEFENDANT- APPELLANT'S EIGHTH AMENDMENT RIGHTS. McIntyre argues that the trial court abused its discretion in imposing a sentence on him that is grossly disproportionate to the crime committed in light of the sentence imposed on his - 7 - brother as well as the lack of evidence that he sold or aiding in the sale of cocaine. The state urges that the court did not abuse its discretion in imposing sentence on McIntyre because the record indicates that the court considered statutory criteria and the presentence investigation report prior to imposing sentence. The issue then for our resolution is whether the court abused its discretion in imposing the maximum sentence on McIntyre in this instance. At trial, McIntyre stipulated to a specification contained in this count of the indictment making this offense a second degree felony. See R.C. 2925.03 (C)(1)(c). R.C. 2929.11(B) provides the following penalty: (5) For a felony of the second degree, the minimum term shall be two, three, four, or five years, and the maximum term shall be fifteen years; In State v. Williams (1982), 7 Ohio App.3d 160, the court stated in its headnote: 2. The severity of a sentence imposed in conformity to the law by a trial court rests in the discretion of that court and is not a matter with which the reviewing court can interfere, except for an abuse of that discretion. See also In re Disqualification of Martin (1987), 36 Ohio St.3d 603. Thus, the standard of review here is whether the trial court abused its discretion in imposing sentence. "The term 'abuse of discretion' connotes more than an error of law or of judgment; it - 8 - implies that the court's attitude is unreasonable, arbitrary or unconscionable." State v. Adams (1980), 62 Ohio St.2d 151, 157. In this case, the record indicates that before imposing sentence, the trial court heard the evidence presented at trial, reviewed a presentence investigation report, considered the factors in R.C. 2929.11, and McIntyre's prior drug trafficking conviction, and afforded McIntyre an opportunity to make a statement. The court then imposed a sentence of five to fifteen years, a $2,500.00 fine, and a one-year license suspension. In imposing this sentence, the court properly exercised its discretion and acted in accordance with law. Accordingly, this assignment of error is overruled merit. McIntyre's fourth assignment of error states: IV. THE VERDICT OF THE JURY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. McIntyre asserts that the jury verdict is against the manifest weight of the evidence because the prosecution failed to prove beyond a reasonable doubt that McIntyre knowingly sold or offered to sell cocaine as evidenced by McIntyre's acquittal of the two other drug trafficking charges and further that the evidence presented at trial was unreliable and incapable of supporting a guilty verdict. - 9 - The state maintains that the verdict of the jury is not against the manifest weight of the evidence. The issue then presented by this assignment of error is whether the jury verdict is against the manifest weight of the evidence. In State v. Martin, supra, the court set forth the following test for the determination of whether a jury verdict is against the manifest weight of the evidence: *** 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weights heavily against the conviction. See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42; ***. An inquiry into whether jury verdict is against the manifest weight of the evidence then involves a determination of whether the jury properly considered the evidence prior to rendering its conviction. In this case, the court charged the jury on three separate counts of drug trafficking in connection with drug transactions on three separate occasions. The evidence at trial revealed that while each drug transaction occurred on the porch of the residence, the evidence surrounding appellant's activities on October 5, 1994, of which - 10 - he was convicted, was different from the other occasions in that on that occasion, he engaged the informant in conversation and walked her to the residence. From this evidence, the jury could have inferred that appellant aided his brother in effectuating this sale. After reviewing the record, weighing the evidence and all reasonable inferences, considering the credibility of witnesses and resolving conflicts in the evidence, we cannot conclude in this case that the jury lost its way and created a manifest miscarriage of justice. Accordingly, we overrule this assignment of error. In accordance with the foregoing analysis, the judgment of the trial court is affirmed. Judgment affirmed. - 11 - 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. HARPER, P.J., and MATIA, J., CONCUR ~ JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(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 .