COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70450 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : JESUS ABREU : : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 24, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-330443 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. ROBERT M. INGERSOLL, ESQ. Cuyahoga County Prosecutor Assistant Public Defender JOSEPH V. HOFFER, ESQ. 100 Lakeside Place Assistant County Prosecutor 1200 West Third Street 8th Floor Justice Center Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, P.J.: Defendant-appellant, Jesus Abreu, appeals a decision by the trial court convicting him of four counts of drug trafficking and sentencing him accordingly. Abreu assigns the following two errors for our review: I. JESUS ABREU'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II. JESUS ABREU WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BEFORE A JURY, WHEN THE TRIAL COURT REFUSED TO GIVE HIS REQUESTED JURY INSTRUCTION. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. Two of the state's witnesses, Alina Guillama and Caridad Ramos, testified as to Jesus Abreus' drug trafficking charges. Their testimony revealed in November 1994, Jesus Abreu, a Cuban native living in Miami, Florida, travelled to the Cleveland area. Once there, he called his girlfriend's sister, Alina Guillama and told her he needed her to bring four kilos of cocaine to Cleveland. Abreu told Guillama he would pay her $500 per kilo once the drugs were sold. Abreu returned to Miami and rented a blue van from Dollar Rent-A-Car. Abreu gave Guillama four kilos of cocaine. He also gave her a loaded gun and told her to put the gun with the cocaine in the van. Abreu left Miami and flew to Cleveland on November 30, 1994. Guillama arrived in Cleveland on December 1, 1994. She was met at the Wyandotte house by Abreu. Guillama delivered one kilo -3- of cocaine to Delgado at the Charterhouse Inn. Later that day, Delgado called and said the cocaine was no good. Guillama went back to pick it up. Half of the kilo had been "cooked" i.e. converted into crack cocaine. When Guillama told Abreu that Delgado didn't want the cocaine, Abreu became angry. The next day, December 2, 1994, Delgado called and asked for another kilo of cocaine. Abreu drove Guillama to the Charterhouse Inn. While Abreu waited in the parking lot, Guillama delivered the cocaine to Delgado. On December 4, 1994, Delgado called and said he was unable to find a buyer for the cocaine. Guillama went to retrieve the cocaine. On December 16, Guillama took another kilo of cocaine to Delgado. Delgado agreed to pay $21,000 for the cocaine. After delivering the cocaine, Guillama flew to Miami for a wedding. Guillama called Caridad Ramos and asked for a ride home from the airport. Concerned about becoming involved in cocaine trafficking, Ramos called her parole officer and told her about Abreu, Guillama, and Delgado. Upon the parole officer's advice, Ramos contacted Detective Charles Escalante and told him about the trafficking and that a large amount of cocaine was hidden in the kitchen of the Wyandotte home. Escalante fitted Ramos with a body wire and instructed her to pick Guillama up from the airport. During the ride back, Ramos got Guillama to confirm that there were drugs at the Wyandotte house. Escalante obtained a search warrant. Later that evening, the officers raided the house and arrested Guillama. They seized -4- numerous items including a total of over 2.5 kilos of cocaine, a scale containing cocaine residue, a loaded 9mm semi-automatic gun, a pager, and parts of a cellular phone. Police also found a red 1991 Mazda van, registered to Abreu and Regla Guillama, in the garage of the Wyandotte home. Police found other papers containing Abreu's name such as rental car receipts, American Express credit card receipts, and an airline ticket stub. On November 15, 1995, in Case No. CR-330443, Abreu was indicted for four counts of aggravated drug trafficking and one 1 count of possession of criminal tools. Three of the aggravated drug trafficking counts contained furthermore clauses alleging prior felony drug abuse offenses. One aggravated drug trafficking count contained a firearm specification. Abreu was convicted of the aggravated drug trafficking counts but found not guilty of the firearm specification and of possession of criminal tools. This appeal followed. In his first assignment of error, Abreu argues his convictions were against the manifest weight of the evidence. Specifically, he argues that two of the state's witnesses, Alina Guillama and Caridad Ramos were liars. He also argues the state lacked physical evidence connecting him with drug trafficking. A verdict will not be reversed as against the manifest weight of the evidence unless the court, after reviewing the entire record, weighing the evidence 1 Guillama was charged with two counts of aggravated drug trafficking (one with a firearm specification) and with possession of criminal tools. Delgado was charged with one count of aggravated drug trafficking. -5- and all reasonable inferences, and considering the credibility of witnesses, finds that the jury clearly lost its way in resolving the conflicts in the evidence and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172, 175. It is well settled that the credibility of witnesses is to be determined by a jury. State v. DeHass (1967), 10 Ohio St.2d 230, 231. Because the jury has the opportunity to listen to the testimony of the witnesses and to observe their demeanor, this court must defer to their judgment. State v. Callahan (1992), 80 Ohio App.3d 184, 192. We are unpersuaded by Abreu's argument that his conviction should be reversed as against the manifest weight of the evidence because of his assertion that both Caridad Ramos and Alina Guillama had strong motives for lying. The jury was made fully aware of Caridad Ramos' history of drug trafficking and of Alina Guillama's claim that she sold cocaine to Ramos. The jury was also made aware that Alina Guillama was under indictment for her role in the cocaine trafficking plan. The state also presented substantial documentary evidence that corroborated much of the witnesses' testimony. It was up to the jury, as factfinders, to believe or disbelieve the witnesses' testimony and evaluate the evidence presented. Abreu also points to the lack of physical evidence connecting him to the drug trafficking. However, Detective Escalante testified that a photo of Abreu was found in the home along with -6- American Express card receipts, the rental agreement for the 1995 Oldsmobile, and registration paper showing Abreu owned the Mazda van found in the garage. He also testified that this evidence led him to believe Abreu was running a cover operation, i.e. giving the outward appearance of being legitimate while actually engaging in drug trafficking. Escalante stated that Alina Guillama was used as the "mule" or front person for the operation. We conclude the jury did not lose its way in evaluating the evidence and resolving the conflicts in the testimony. The jury's decision did not create a manifest miscarriage of justice that would necessitate reversal of Abreu's conviction. Abreu's first assignment of error is overruled. In his second assignment of error, Abreu argues the trial court erred in failing to give a requested instruction on the credibility of co-conspirators. Abreu argues that, because Caridad Ramos was implicated in the drug trafficking, the jury should have been given the co-conspirators instruction with respect to her testimony. We disagree. Caridad Ramos was not charged in connection with Abreu's drug trafficking activities and the state did not allege any involvement by Ramos. Therefore, Ramos' was merely a witness, not an "alleged accomplice" and naming Ramos as an accomplice would have constituted an improper comment by the trial court upon her credibility. Whether or not *** witnesses were accomplices was a question to be submitted to the jury, and that question was properly submitted to the -7- jury as part of the general charge under a proper definition of the word 'accomplice.' The jury was also to be the judge of the belief to be attached to their testimony. To single out one witness, or a number of witnesses, for either the prosecution or the defense and to discuss their credibility, would be manifestly invading the province of the jury. Curtis v. State (1925), 113 Ohio St. 187, 209-210; State v. Scott (1986), 26 Ohio St.3d 92, 100. In this case, the court avoided improper commentary upon Ramos' credibility by giving the following instruction: You've heard testimony in this case, ladies and gentlemen, from one or more alleged accomplices. The testimony of an accomplice, ladies and gentlemen, does not become inadmissible because of his or her complicity, moral turpitude or self-interest, but the admitted or claimed complicity of a witness may affect the person's credibility, and make that testimony subject to grave suspicion, and require that it be weighed by you with precaution. (Tr. 1291.) The court properly refused to specifically name Ramos as an alleged accomplice. Abreu's second assignment of error is overruled. Judgment 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 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 O'DONNELL, J., CONCUR. PATRICIA ANN BLACKMON 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 .