COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70259 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION LARRY COX : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 10, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-329960. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Mark Mahoney Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Paul Mancino, Jr., Esq. 75 Public Square, #1016 Cleveland, Ohio 44113-2098 SWEENEY, JAMES D., C.J.: Defendant-appellant Larry M. Cox ("Cox"), d.o.b. July 11, 1973, appeals from his jury trial conviction of the following: (1) Count One - Trafficking in Drugs [cocaine] in violation of R.C. 2925.03(A)(4); and (2) Count Two - Trafficking in Drugs [cocaine] 1 in violation of R.C. 2925.03(A)(2). For the reasons adduced below, we affirm. A review of the record on appeal indicates that the trial court conducted a pretrial hearing on the defendant's motion to suppress evidence, which was premised on the allegation that the stopping of defendant's automobile by the police was pretextual. The arresting officer, Cleveland Police Patrolman Dalton Preston, testifying as the sole witness for the prosecution at the 1 The version of R.C. 2925.03(A)(2) and (4) then in effect provided as follows: (A) No person shall knowingly do any of the following: * * * (2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe the controlled substance is intended for sale or resale by the offender or another; * * * (4) Possess a controlled substance in an amount equal to or exceeding the bulk amount, but in an amount less than three times that amount; * * * Defendant was acquitted on Count Three - Possession of Criminal Tools (telephone pager). - 3 - suppression hearing, recounted that he has been an officer for five years and had participated in over 600 drug arrests, and that the arrest of the defendant took place while on basic patrol in the early evening of August 16, 1995. While on patrol between 6 to 6:30 p.m. in the vicinity of East 116th Street and Kinsman Avenue, Officer Preston observed the vehicle directly in front of him, driven by the defendant, make an improper right hand turn from the 2 center lane of Kinsman Avenue and proceed onto East 116th Street. The officer also did not recall the offending vehicle using a turn signal to indicate an impending turn. Kinsman Avenue at that point is a four lane street with two lanes in each direction, and there was no traffic in the curb lane at the time of the offending turn. The officer turned on his overhead lights and proceeded to follow the offending vehicle, which did not pull over. Officer Preston radioed this information to his headquarters. Sergeant Barrow, who was on patrol in another squad car, overheard this radio transmission and drove to the scene, pulling in front of the offending vehicle and stopping it in the vicinity of East 116th Street and Union Avenue. Officer Preston pulled up behind the defendant's vehicle and then walked up to the driver's door. While approaching the defendant's vehicle, Officer Preston observed the driver, who was the sole occupant, make "furtive movements, stuffing movements, a lot of activity around the seat and the 2 Making a right hand turn from a center lane is a violation of Cleveland Codified Ordinance 431.10. - 4 - waistline," prompting the officer to be concerned about the driver being armed with a weapon. R. 12. The defendant was unable to produce a driver's license when asked. The defendant then exited the vehicle when asked by the officer. The defendant, with his hands placed on the car at the driver's side rear door, was then patted down for weapons. No weapons were found. With the driver's door still open, Officer Preston looked down and observed, in plain view on the side of the front seat on the floor where the seat belt harness would come down by the seat, a plastic bag containing several large chunks of suspected crack cocaine. R. 46-47. Later scientific analysis indicated that the material in the bag tested positive for crack cocaine in the amount of 12.04 grams. The defendant was the sole witness to testify on his behalf at the suppression hearing. The defendant alleged that he turned right from East 104th Street onto Kinsman Avenue after having stopped at a stop sign. He noticed a police squad car parked in the curb lane on Kinsman Avenue about five houses down from the stop sign. This squad car then followed him as he proceeded in the right hand lane. The defendant then claimed to have made the right hand turn, from the right hand lane, onto East 116th Street. The defendant observed no lights or sirens from the squad car. As the defendant was stopped at the traffic light at East 116th Street and Union Avenue, a second police car pulled in front of him. The first squad car then came up behind him and turned on its flashers and siren. Seeing these warning devices deployed, the defendant - 5 - reached to turn down the volume on his car radio. Also to his right was a jug of water, which he had had in his hand and which was left in the car when he was arrested. He denied making any stuffing movements and claimed that he was never asked for his driver's license. He also stated that it was after he had been patted down and handcuffed that the officer went into the vehicle and found the narcotics. He alleged that he was renting the offending vehicle from his brother and does not know how the drugs came to be in the car or who owned the drugs. The court then heard the arguments of counsel and denied the motion to suppress. At the jury trial, the prosecution offered scientific evidence demonstrating that the contraband seized in the defendant's car was crack cocaine in the amount of 12.04 grams. The prosecution also submitted the testimony of Officer Preston, who reiterated his testimony from the suppression hearing, and Sergeant Barrow, a 17 year police veteran, who corroborated the testimony of Officer Preston. Sergeant Barrow also testified that the three rocks of crack, with a street value in excess of $1,000 at approximately $20 per unit dose after cutting, indicates that the drugs were not for personal consumption but were being trafficked to other users. The prosecutions final witness, Vice Detective Terrence Longstreet, testified that he assisted the arresting officers at the scene of the stop, took possession of the contraband at that point from the arresting officer who found the material in the defendant's - 6 - vehicle, and transferred the contraband as evidence to the police laboratory. The defense motioned the court for acquittal at the close of the prosecution's case. This motion was denied. The defense case consisted of the testimony of four witnesses. The first witness was Miss Carla White, the defendant's girlfriend, who asserted that the car the defendant was driving at the time of the arrest was a rental car, but she did not know who rented it. She also stated that the defendant owns a red Chevrolet Camaro and an Oldsmobile Cutlass. The second witness, Mr. Tamar Taylor, stated that the defendant lived across the street from Mr. Taylor's girlfriend, and he observed the defendant doing some yard work there shortly before the arrest with several other males. While the witness talked with the landscaping males, the offending vehicle arrived, driven by two other unnamed males who left the car there. The defendant then left in the offending car after receiving a telephone call, even though the Cutlass was in the driveway. The third witness, Mr. Larry Franklin, testified that he was one of the males who was helping do the yard work that afternoon. Mr. Franklin corroborated Mr. Taylor's testimony, adding that the Camaro and the Cutlass were parked in the driveway that afternoon. The fourth witness, the defendant, reiterated his earlier suppression testimony. - 7 - At the close of the defendant's case, the defense renewed its motion for acquittal. This renewed motion was denied and the jury ultimately returned its verdict. This timely appeal presents six assignments of error for review. I DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION TO SUPPRESS. Appellant argues this assignment on several grounds. First, appellant suggests that the initial traffic stop was a pretext for a warrantless stop. This court had cause to review an investigative traffic stop in City of Cleveland v. White (October 3, 1996), Cuyahoga App. No. 68457, unreported, 1996 Ohio App. LEXIS 4391, at 4, wherein we cited the following from State v. Robinette (1995), 73 Ohio St.3d 650, 652, 653 N.E.2d 695: In order to justify any investigative stop, a police officer "must be able to point to specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio (1968), 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906. In the case sub judice, given that the credibility of the witnesses is a question to be determined by the trial court, State v. Williams (1994), 94 Ohio App.3d 538, we conclude that the officers could point to specific and articulable facts which would warrant the initial stop. The arresting officer observed the defendant-appellant make an improper right turn from the inner- most lane of the two-lane roadway in which he was travelling, which - 8 - is a traffic offense under the Cleveland Ordinances, and failed to stop his vehicle for a considerable distance after the police displayed their warning flashers and siren. The second basis upon which appellant relies to suppress the evidence is that there was no justification to order the defendant from the stopped vehicle and then to pat him down beside the vehicle. This basis is premised primarily on the assumption that the initial stop was invalid. As previously discussed, it was not inappropriate. Next, appellant contends that the removal of the defendant from the stopped vehicle was without authority. This is unfounded. The officer had a valid traffic stop and the minimal detention of the defendant therein could continue so long as was necessary to resolve the officer's concerns which justified the initial investigatory stop, including ordering the suspect from the vehicle. State v. Evans (1993), 67 Ohio St.3d 405, 408, 618 N.E.2d 162; State v. Carlson (1995), 102 Ohio App.3d 585, 595-596. Since the suspect was seen making furtive movements prior to stopping the vehicle and did not produce a valid driver's license after stopping the vehicle, removing the suspect from the vehicle during the brief detention period following the stop was justified. Next, appellant argues that the pat-down search of his person was improper. This presupposes that the initial stop was unjustified under Terry, which it was not. Additionally, "[W]here a police officer, during an investigative stop, has a reasonable suspicion that an individual is armed based on the totality of the - 9 - circumstances, the officer may initiate a protective search for the safety of himself and others." State v. Evans, supra at 408-409, citing State v. Bobo (1988), 37 Ohio St.3d 177, 524 N.E.2d 489, paragraph two of the syllabus. In the present case, the furtive movements of the suspect could suggest that he was armed, thereby justifying the limited protective search for weapons. Finally, appellant argues that the "plain view" exception should not be applied because the incriminating nature of the contraband was not immediately apparent. See Coolidge v. New Hampshire (1971), 403 U.S. 443 (plain view exception to the warrant requirement set forth). In the present case, the initial stop was valid and the arresting officer was lawfully patting down the suspect when he looked down and saw the contraband, which in his experience gave the officer probable cause to believe that it was associated with crack cocaine. See Horton v. California (1990), 110 S.Ct. 2301; Texas v. Place (1983), 460 U.S. 470. The first assignment of error is overruled. II DEFENDANT WAS DENIED DUE PROCESS OF LAW AND A FAIR TRIAL WHEN THE COURT FAILED TO TAKE ANY CORRECTIVE ACTION CONCERNING A COMMUNICATION MADE BY A JUROR AND THEREAFTER COERCED THE JURY TO RETURN A VERDICT. In the afternoon of the second day of jury deliberations, the jury sent a note to the trial judge. The substance of the communication is as follows: THE COURT: Good afternoon, ladies and gentlemen. Ladies and gentlemen, I have - 10 - received your note. The note reads, how do we know when we have a hung jury? Then it asks, is there a time limit? And then it adds further discussion does not sway members' views, and that's signed by the foreperson. *** (R. 377, underline added.) Immediately thereafter, the trial court instructed the jury to continue its efforts to reach a verdict and the jury returned to its deliberations. R. 377-380. See State v. Howard (1989), 42 Ohio St.3d 18. Shortly before lunch the following morning, juror Tracey Simon sent a communication, co-signed by the foreperson, to the trial judge. This communication stated, "I cannot come to the same decision as the other jurors. I now feel that I'm being attacked and I have been now doubting my own sense of reasoning." R. 382. Without discussing the merits of the communication at that time, the court sent the jury to lunch. After returning from lunch, the court, with counsel present, disclosed the communication contents to counsel and addressed the foreperson, not juror Simon, asking if there was a possibility whether additional time in deliberations would produce a verdict. The foreperson answered "Yes." R. 385. The jury then was sent back to deliberate further. Later that afternoon, the jury returned its verdict. Polling of the jurors indicated as to each that this was their verdict. Reviewing the record, it is clear that the court acted in compliance with Howard in instructing the jury to continue to seek a verdict as long as that possibility to do so existed. Having acted in accordance with the typical Howard charge, coercion of the - 11 - jury to return a verdict is not demonstrated. We also do not see where the trial court communicated with the jury relative to the substance of the communications outside the presence of counsel. Appellant's allegation that the trial court should have taken more immediate corrective action, rather than sending the jury to lunch on the second day's deliberations after having received the second communication, does not demonstrate any prejudice or abuse of discretion in the timing of the trial court's response. The second assignment of error is overruled. III DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DID NOT FULLY DESCRIBE THE ELEMENTS OF THE OFFENSE AND MODIFIED THE STATUTORY ELEMENTS OF THE OFFENSE CHARGED IN COUNT TWO. The jury instruction at issue provides the following: * * * The defendant Larry Cox is charged with trafficking in drugs in count 2 of the indictment, also. Before you can find the defendant guilty, you must find beyond a reasonable doubt that on or about August 16, 1995, and in Cuyahoga County, Ohio, that the defendant knowingly transferred or prepared for distribution a controlled substance specifically cocaine, a schedule II drug knowing or having a reasonable cause to believe that the cocaine was intended for sale or resale by the defendant or another person. (R. 358.) * * * Appellant argues that the court erred in adding the term "transferred" to the elements of the second count, and that this - 12 - additional term was not included in the indictment or defined by 3 the court. In addressing this assignment, we note that the defense did not enter an objection to this jury instruction. R. 368. Accordingly, error therein is waived for appellate purposes unless such error rises to the level of plain error. State v. Williams (1977), 51 Ohio St.2d 112. For plain error to apply, which is done only in the most exceptional of circumstances, it must be demonstrated that (1) but for the claimed error the result of the trial would clearly have been different, and (2) to not consider the error would result in a clear miscarriage of justice. State v. Manley (1994), 71 Ohio St.3d 342, 347, citing State v. Long (1978), 53 Ohio St.2d 91, paragraph three of the syllabus, and State v. Moreland (1990), 50 Ohio St.3d 58, 62. In the present case, plain error is not demonstrated. The record disclosed that the amount of the contraband indicated to an experienced officer that the drugs were intended, not for personal use, but for distribution and sale to the narcotic marketplace. Even without the error, the jury could easily conclude that the defendant did not commit the offense charged in count two by using a vehicle to transport for distribution the drugs found in plain view. The third assignment of error is overruled. 3 The language of the indictment on count two mirrored the statute language, by containing the word "transport" rather than "transfer." - 13 - The fourth and fifth assignments of error will be discussed jointly since they both argue sufficiency of the evidence. IV DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HIS MOTION FOR JUDGMENT OF ACQUITTAL AS TO POSSESSION OF A CONTROLLED SUBSTANCE WAS OVERRULED. V DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HIS MOTION FOR JUDGMENT OF ACQUITTAL AS TO THE OFFENSE OF PREPARATION FOR SALE CHARGED IN COUNT TWO OF THE INDICTMENT WAS CONCERNED. The standard of review for an argument based on sufficiency of the evidence was stated by this court in State v. Wigley (February 6, 1997), Cuyahoga App. No. 69920, unreported, at 8-9, citing State v. Standberry (February 15, 1996), Cuyahoga App. No. 69079, unreported, 1996 WL 65875, at 3: The standard of review with regard to the sufficiency of the evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: 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 - 14 - 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.) Cited and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. Also see State v. Eley (1978), 56 Ohio St.2d 169, paragraph one of the syllabus: A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. In the present case, the testimony, which must be viewed in a light most favorable to the prosecution, indicated that the defendant was the sole occupant of the vehicle and that he made stuffing movements with his arms in the direction of his waist prior to being stopped by the police. The drugs were found in plain view, on the floor of the car between the door and the driver's seat near the seat belt harness, an area of the vehicle which is closely associated spatially with the driver's waist area. This is sufficient to demonstrate constructive possession of the drugs and a violation of the offense in count one. State v. Claytor (1993), 85 Ohio App.3d 623; State v. Pruitt (1984), 18 Ohio App.3d 50. The evidence also indicated that the amount of the drugs being transported inferred that the contraband was not intended for personal use, but was intended for subsequent - 15 - processing, distribution and sale. This is sufficient to demonstrate a violation of the offense in count two. Accordingly, the trial court did not err in denying the motions for acquittal. The fourth and fifth assignments of error are overruled. VI DEFENDANT WAS DENIED DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAW WHEN HE WAS SENTENCED TO AN INDEFINITE TERM OF IMPRISONMENT FOR A FELONY OF THE THIRD DEGREE. This assignment is largely premised on the faulty assumption that the violence specification (a 1992 conviction for the offense of attempted carrying a concealed weapon pursuant to R.C. 2923.02 [attempt] and R.C. 2923.12 [carrying a concealed weapon]) is not an "offense of violence" pursuant to R.C. 2901.01(I)(3), therefore the indefinite sentence for a third degree felony could not be imposed. This argument is mistaken. Appellant overlooks the clear language of R.C. 2901.01(I)(1) and (4), which defines the offense of an attempt to carry a concealed weapon as an "offense of violence": (I) "Offense of violence" means any of the following: (1) A violation of sections ... 2923.12 ...; (4) A conspiracy or attempt to commit, or complicity in committing, any offense under division (I)(1), ... Finally, although not specifically stated in the assignment of error, appellant argues in his brief, at 31-33, that the imposed sentence was disproportionate and therefore cruel and unusual punishment pursuant to the Eighth Amendment to the United States Constitution. This constitutional issue was not raised at the trial court and cannot be raised for the first time on appeal. - 16 - State v. Awan (1986), 22 Ohio St.3d 120. Even if this argument had been preserved for appellate purposes, we would conclude that the argument is without merit. In addressing this sub-argument, appellant makes the bald assertion that the sentence is cruel and unusual and then provides excerpts from two federal cases which discuss the general standard of review relative to the issue of cruel and unusual punishment. Appellant neglects to provide any analysis of the facts of the case sub judice and apply the standard of review to those facts. Despite this failure in analysis, we note that the potential sentence for a third degree felony pursuant to R.C. 2929.11(B)(6) is 2, 2 1/2, 3 or 4 years to 10 years, and the trial court sentenced the defendant-appellant to the minimum term available, 2 to 10 years. The imposed sentence is not so "grossly disproportionate to the offenses as to shock the sense of justice in the community." State v. Hamann (Cuyahoga, 1993), 90 Ohio App.3d 654, 672, citing State v. Chaffin (1972), 30 Ohio St.2d 13, and State v. Jarrells (1991), 72 Ohio App.3d 730. Accordingly, cruel and unusual punishment has not been demonstrated. The sixth assignment of error is overruled. Judgment affirmed. - 17 - 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. DAVID T. MATIA, J., and DIANE KARPINSKI, J., CONCUR. JAMES D. SWEENEY CHIEF JUSTICE 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 .