COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69654 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION NICARLO WILLIAMS : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-309348. JUDGMENT: AFFIRMED IN PART, VACATED IN PART. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Anthony J. Kellon Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: David L. Doughten, Esq. 4403 St. Clair Avenue, N.E. Cleveland, Ohio 44103 SWEENEY, JAMES D., P.J.: Defendant-appellant Nicarlo Williams appeals from his conviction for drug trafficking, possession of cocaine in more than the bulk amount, in violation of R.C. 2925.03(A)(4). The court's journalized entry reflects that the appellant was sentenced to a term of three to ten years incarceration, three years of which are actual incarceration because of a prior felony drug abuse conviction. The appellant was ordered to pay the mandatory fine of $5,000. On February 5, 1994, Detective Thomas Shoulders of the Cleveland Police Department narcotics unit was on duty with the street enforcement unit in the Bellaire Garden area. This squad of nine officers generally patrol the streets in three or four separate vehicles. Detective Shoulders and his partners, Detective Mark Mazur and Detective Ronnie Ehrbar, were in one of the unmarked police vehicles that day patrolling the area between 2:30 p.m. and 3:00 p.m. At the intersection of West 122nd Street and Sobieski, Officer Shoulders observed a red Pontiac Grand Prix approaching southbound on West 122nd St. As the vehicle approached the officers, the driver noticed the officers and mouthed an expletive. The officers exited their vehicle and, while standing next to it, observed the driver toss to the appellant a bag containing white powder. The driver of the vehicle, Mark Simpson, threw the Grand Prix in reverse and began to back up at a high rate of speed. - 3 - Officers Mazur and Shoulders reentered the police vehicle, activated the flashing blue light, and gave chase. Officer Shoulders broadcasted to the other officers that they were in pursuit. The officers observed the Pontiac as it almost hit the poles along the street and saw the children scatter. Eventually the fleeing vehicle backed into a parking lot and struck a gold Renault. The driver and the appellant exited the vehicle and fled in different directions. Officer Shoulder chased the driver. Detective Mazur pursued the appellant. Detectives Deli and Gaertner had overheard the broadcast and had positioned themselves in the parking lot. These officers also observed the collision between the Grand Prix and the Renault. Officers Shoulders and Ehrbar apprehended the driver. Cleveland Police Detective George Deli and his partner Detective Gaertner were members of the street enforcement squad giving special attention to the area of high drug activity and drug sales taking place in the area of West 130th Street and Bellaire. On February 5, 1994, at approximately 2:45 p.m., he was in a brown Ford detective car which entered a parking lot. Detective Deli heard the broadcast of Detective Shoulders regarding the pursuit of the red Pontiac. He then observed the red Pontiac back up at a high rate of speed and smash into the gold Renault. Two males exited the vehicle. Detective Deli swung the police vehicle around and was able to see the appellant as the appellant fled on foot and observed the appellant throw a plastic - 4 - bag. He exited the police vehicle, retrieved the drugs, and returned to the car to continue giving chase. Detective Gaertner proceeded after the appellant on foot. The plastic bag retrieved by Detective Deli contained two smaller plastic bags containing white powder. The appellant was eventually apprehended in the home of his aunt who resided on West 123rd Street. Detective Deli retained possession of the recovered drugs until he returned to the Justice Center. At that time the drugs were given to his commanding officer, Sergeant Gercar, who placed them in a sealed Scientific Investigation Unit (SIU) laboratory bag. Detective Gaertner corroborated the testimony of the other officers and stated that he also observed the appellant fleeing the scene where the red Pontiac had struck the gold Renault, and observed the appellant throw a bag to the ground. Officer Gaertner pursued the appellant to the home of his aunt. Cynthia Lewis is an employee of the Cleveland Police Department assigned to the SIU. Ms. Lewis received the laboratory bag from the officers and determined that it contained 14.41 grams of cocaine, a schedule II drug. The bulk amount for cocaine is ten grams. The appellant sets forth three assignments of error. The first assignment of error: - 5 - I PROSECUTOR MISCONDUCT DURING CLOSING ARGUMENT DENIED APPELLANT HIS FOURTEENTH AMENDMENT RIGHT TO A FAIR AND IMPARTIAL TRIAL. The appellant argues that the State's closing argument was so prejudicial as to deny him a fair trial. The appellant asserts that prosecutorial misconduct occurred when the State commented on the appellant's failure to testify, the State's use of inflammatory remarks, and the State's attack of the defense counsel's tactics. The Supreme Court has held that the conduct of a prosecuting attorney during trial cannot be made a ground of error unless the conduct deprives the defendant of a fair trial. State v. Keenan (1992), 66 Ohio St.3d 402 citing to State v. Apanovitch (1987), 33 Ohio St.3d 19. The court also noted that the effects of any prosecutorial misconduct must be considered in the context of the entire trial; "one factor relevant to the due-process analysis is whether the misconduct was an isolated incident in an otherwise properly tried case." Keenan, supra, 410. The test regarding prosecutorial misconduct in closing argument is whether the remarks were improper, and if so, whether they prejudicially affected a substantial right of the defendant. State v. Johnson (May 25, 1995), Cuyahoga App. No. 67286. In deciding whether or not the defendant was denied a fair trial, the court must determine whether the fact finder would have found the defendant guilty absent the prosecutor's remarks. State v. Smith (1984), 14 Ohio St.3d 13; State v. Maurer (1984), 15 Ohio St.3d 239. - 6 - In the case sub judice, when the prosecutor improperly commented on the appellant's constitutional right to remain silent: Now, ask yourself what was he doing? The State has put on evidence to let you come to a conclusion that this man is a drug dealer. You didn't hear any other evidence. You didn't hear anybody get up here and say, "Hey, this is not my stuff," or -- MR. WHITE: Objection. MR. KELLON: "Nicarlo told me -- MR. WHITE: Objection. THE COURT: Sustained, sustained. That's sustained. MR. WHITE: Objection. THE COURT: Sustained. MR. WHITE: Judge, may I make a constitutional move? THE COURT: The jury will be instructed to disregard those comments. (T. 163-164.) While this court finds this type of argument reprehensible and outrageous, the record shows that the trial court sustained the objection from appellant's counsel and gave a curative instruction to the jury (T. 164). The State also erred in improperly arguing that the appellant's counsel was a hired gun. This argument was specifically criticized in Keenan, supra at 406, where the court held: Moreover, the jury is likely to believe a prosecutor's suggestion that defense counsel are mere "hired guns." The prosecutor carries into court the prestige of "the representative - 7 - * * * of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest * * * is not that it shall win a case, but that justice shall be done. * * * Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none." Berger v. United States (1935), 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321. The appellant also argues that the prosecutor's statement, on two occasions, that cocaine kills, is alone sufficient for reversal. These comments merely relate a common fact, known to all who either watch television news or read today's newspaper, and do not constitute any error on the part of the State. In addition, we note that counsel for the appellant raised no objection when the prosecutor accused the appellant of "hiding behind" his aunt, and this comment does not rise to the level of plain error sufficient to require a reversal. The effects of any prosecutorial misconduct must be considered in the context of the entire trial as one factor relevant to the due-process analysis. This court must consider whether the two blatant acts of prosecutorial misconduct were isolated incidences in an otherwise properly tried case. Keenan, supra. Applying this test, it is clear that the errors committed by the State, while serious, were not so egregious as to deny the appellant his Constitutional right to a fair trial. The appellant's first assignment of error is overruled. The second assignment of error: - 8 - II THE VERDICT FINDING THE APPELLANT GUILTY OF A DRUG OFFENSE WAS AGAINST THE WEIGHT OF THE EVIDENCE. The appellant asserts that the verdict was against the manifest weight of the evidence because the lack of testimony regarding the chain of custody of the cocaine challenges the quality of the evidence, and precludes the State from meeting its burden of proof beyond a reasonable doubt. The Supreme Court set forth the test for appellate review of manifest weight of the evidence in State v. Jenks (1991), 61 Ohio St.3d 259,273. A verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of fact. A reviewing court will not reverse a verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of the offense have been proven beyond a reasonable doubt. State v. Ely (1978), 56 Ohio St.2d 169; State v. DeHass (1967), 10 Ohio St.2d 230. The weight to be given evidence and the credibility of witnesses are primarily for the trial of fact to determine. Jenks, supra. Courts have repeatedly held that chain of custody objections go to the weight of the evidence not to its admissibility. State v. Richey (1992), 64 Ohio St.3d 353; State v. Blevins (1987), 36 Ohio App. 3d 147. This court, in In re Lemons (1991), 77 Ohio App.3d 691 held: - 9 - 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, 353 N.E.2d 866. 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, 288 N.E.2d 296. 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, 194 N.E.2d 791. Any breaks in the chain of custody go to the weight of the evidence afforded to the evidence, not to its admissibility. Id. See also State v. Gipson (July 7, 1996), Cuyahoga App. No. 69409, unreported; State v. Mays (Dec. 20, 1995), Cuyahoga App. Nos. 67262, 67291, unreported. The jury in the case herein heard evidence from two police officers, Detective Deli and Detective Gaertner, that they observed the appellant flee from the vehicle in which he had been a passenger and that during his flight he threw down a bag. Upon recovering the bag, Detective Deli identified the contents visually as drugs. Detective Deli turned the drugs over to his superior, Sergeant Gercar, who in turn placed it in a sealed SIU laboratory bag. Ms. Lewis testified that she received the bag from Sergeant Gercar and others. Based upon the testimony of the officers and of Ms. Lewis, the jury in this case was entitled to conclude that no break in the chain of custody occurred. Given that the jury also heard testimony from two officers that the appellant threw down a packet - 10 - identified as cocaine, the weight of the evidence supports the appellant's conviction for drug trafficking, possession of cocaine. The second assignment of error is overruled. The appellant's third assignment of error: III THE TRIAL COURT ERRED BY SENTENCING THE APPELLANT TO TWO DRUG LAW CONVICTIONS WHERE THE JURY FOUND THE APPELLANT GUILTY OF ONE SUCH OFFENSE. The appellant correctly notes that the trial court's journal entry reflects a conviction on two separate counts of drug trafficking. The jury found the appellant guilty on only count two of the indictment; drug trafficking, possession of cocaine. The second conviction on count three of the indictment and the sentence for that conviction are hereby vacated. The appellant's third assignment of error is well taken. Judgment affirmed in part and vacated in part. - 11 - This cause is affirmed in part and vacated in part. The court finds there were reasonable grounds for this appeal. It is, therefore, considered that said appellant(s) and appellee(s) each pay one-half of the costs herein. It is ordered that a special mandate be sent to said court 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. Exceptions. JOSEPH J. NAHRA, J., and DIANE KARPINSKI, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE 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 of decision by the .