COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69798 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION LISA BROWN : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 29, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-325210 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. WILLIAM L. SUMMERS, ESQ. Cuyahoga County Prosecutor 28001 Chagrin Blvd, Suite 300 ANTHONY J. BONDRA, ESQ. Cleveland, Ohio 44122 Assistant Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Appellant was indicted on two counts of drug trafficking pursuant to R.C. 2925.03. Each count alleged that she had sold an amount of crack cocaine less than the minimum bulk amount. After trial, the jury returned an acquittal on the first count and a guilty verdict on the second count. Appellant was sentenced to two years of incarceration, a six month suspension of her driver's licence and a $5,000.00 fine, which was suspended. The primary evidence to support appellant's conviction was the testimony of Johnny Edwards, the police informant, and a tape recording of the transaction which was obtained by Edwards. The initial investigation was conducted against appellant's male friend. The police wired Edwards and monitored the wire while Edwards walked to appellant's residence to purchase cocaine. Because appellant's friend was not at home, Edwards asked appellant if she had the drugs for sale. Edwards had known appellant for three or four years. She offered to sell the drugs to him. This was the first encounter of that day, which did not result in a conviction. Later that same day, Edwards was again wired and sent to appellant's home for a second buy. After Edwards reached the house on foot, the detectives drove by in an unmarked car to verify the situation they were listening to over the wire. Detective Mendolera testified that he saw appellant in the driveway with Edwards. No adult voices were heard on the tape other than - 3 - appellant's and Edwards'. Several times Mendolera heard Edwards identify the person with whom he was speaking as "Lisa." Edwards bought $20.00 worth of cocaine, less than the minimum bulk amount, at the second buy. Upon return to the unmarked police vehicle, Edwards handed over the drugs and was searched, pursuant to standard procedure. Appellant was arrested after the investigation of others involved was complete. Appellant filed a timely notice of appeal from her conviction and sentence, asserting four assignments of error. I THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT- APPELLANT IN ALLOWING TAPE RECORDING OF TRANSACTION WITHOUT PROPER FOUNDATION FOR IDENTIFICATION OF VOICE ON THE TAPE. Appellant argues that the identification of the voice on the tape recording of the transaction was made under impermissibly suggestive circumstances. Appellant's argument is not well taken. Evid.R. 901(A) governs the admissibility of evidence which must be authenticated: The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. More specifically relating to the evidence in this case, Evid.R. 901(B)(5) sets forth the following example of authentication: Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any - 4 - time under circumstances connecting it with the alleged speaker. The issue presented for our review is whether sufficient evidence was offered to support a finding that the tape is a recording of the conversation between appellant and Edwards, as the State claims it is. The evidence consisted of testimony by Edwards identifying appellant as the other speaker on the tape and testimony of Detective Mendolera identifying appellant as the woman to whom Edwards was speaking when Mendolera drove by appellant's home. Furthermore, the other speaker was identified by Edwards as "Lisa" several times during the recorded conversation. This is sufficient evidence under Evid.R. 901(B)(5) to support a finding that the tape was a recording of appellant's transaction with Edwards. Appellant's first assignment of error is overruled. II PROSECUTOR VIOLATED CRIM.R. 16 BY NOT PRODUCING ALL RECORDED STATEMENTS MADE BY DEFENDANT WHICH WAS PREJUDICIAL TO THE DEFENDANT AND TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING MOTION FOR CONTINUANCE WHEN TAPES WERE PRESENTED ON THE DAY OF TRIAL. III THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR BY FAILING TO COMPEL THE STATE TO DISCLOSE THE IDENTITY OF THE CONFIDENTIAL INFORMANT AND INFORMATION ABOUT HIM UNTIL THE DAY OF TRIAL DENYING THE DEFENDANT- APPELLANT HER CONSTITUTIONALLY PROTECTED RIGHTS TO CONFRONTATION PURSUANT TO THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND TO SUBSTANTIVE AND PROCEDURAL DUE PROCESS PURSUANT TO THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. - 5 - Because appellant's second and third assignments of error present similar issues we will address them together. Appellant claims that she was prejudiced by not knowing the identity of the informant until the day of trial. It is appellant's position that the prosecutor was under a duty to reveal the identity of the informant without the condition that a plea bargain would not be offered in the event that appellant chose to listen to the tape prior to trial. Appellant's claim is without merit. Prior to trial appellant's counsel had the opportunity to listen to the recording and discuss the contents of the tape with appellant. To protect the identity of the informant, the tape was not played to appellant until the day of trial. A continuance was requested because defense counsel did not know whether appellant was ready to go forward. Based upon its context in the proceed- ings, this request for a continuance did not seem to be premised upon the fact that a last minute hearing of the tape recording would somehow prejudice his client. This continuance request was denied by the trial court. It is well settled that the decision to grant or deny a motion for a continuance is within the sound discretion of the trial court. State v. Crebs (1987), 42 Ohio App.3d 50. We can not find an abuse of that discretion given the facts of this case because appellant has failed to support her assertion that she was prejudiced by the denial of her motion for continuance. - 6 - Appellant's counsel had had time to prepare a defense based upon listening to the recorded transaction during a pre-trial hearing. Furthermore, appellant had the opportunity to cross-examine Johnny Edwards during trial as to his prior convictions and pending cases. Appellant has not shown how an earlier disclosure of Edwards' identity would have been helpful to her in preparing her defense. Appellant's second and third assignments of error are overruled. IV THE JURY VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that her conviction is against the manifest weight of the evidence because the testimony elicited from Johnny Edwards was not reliable and that Detective Mendolera's identification of her was also not credible. Appellant's argument is not well taken. In determining whether the 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. State v. Davis (1988), 49 Ohio App.3d 109, paragraph three of the syllabus. A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude - 7 - that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, paragraph one of the syllabus. We can not find that the jury clearly lost its way when substantial evidence exists upon which the jury could have reasonably concluded that appellant did in fact knowingly sell or offer to sell cocaine, a controlled substance, in an amount less than the minimum bulk amount. Although the tape was played for the jury, neither the tape itself nor a transcribed version were provided for this Court's review. We must presume that the taped evidence was consistent with other testimony elicited at appellant's trial, without proof to the contrary. Testimony elicited from Johnny Edwards supports appellant's drug trafficking conviction. Although Edwards is a convicted felon and stood to gain from his cooperation with the police, his testimony was corroborated by Detective Mendolera's identification of appellant and verification that the transaction took place at appellant's residence. Detective Mendolera's identification of appellant was made as he drove slowly by her home. She and Edwards were standing in the driveway. We can not reverse a jury verdict where such substantial evidence exists to support the conviction. Appellant's fourth assignment of error is overruled. Appellant's conviction and sentence are affirmed. - 8 - 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 Court of Common Pleas 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. JAMES D. SWEENEY, P.J., AND PATTON, J., CONCUR. ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .