COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70600 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION MANUEL VEGA : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 10, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Cuyahoga County Common Pleas Court Case No. CR-328827 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PAUL MANCINO, JR., ESQ. Cuyahoga County Prosecutor 75 Public Square Suite 1016 ANTHONY J. KELLON, ESQ. Cleveland, Ohio 44113-2098 Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant appeals from his conviction for drug trafficking and possession of criminal tools. On appeal, defendant raises nine assignments of error. For the reasons that follow, we find these assignments to be without merit and affirm the judgment of the trial court. Testifying for the state, police officers explained that, as part of their duties in the vice unit, they set up a controlled drug buy between an informant and suspects that the informant knew were selling heroin. The informant paged the number from a pay phone in a parking lot to set up the drug transaction. A few minutes later, a return phone call was made to the pay phone and the police recorded the conversation in which a deal was made for $80 worth of heroin. Five or ten minutes later, defendant and co-defendant Jose Nieves pulled up in a blue Toyota. The informant purchased the drugs from defendant, who was the passenger, and paid for the heroin with marked money. Immediately after the purchase, the police arrested the defendants and found a pager along with $80 of marked money the police had given to the informant. Testing from the Cleveland Police Scientific Laboratory revealed that the items purchased from defendants contained a total of .15 grams of heroin divided among five packets. Defendant testified that he was on his way to his brother's house when he received a page from his wife. He stopped at a - 3 - Convenient Food Mart to call her back. On his way to the phone he gave a cigarette to a "bum." After making the phone call, he was stopped by police to whom he explained that the money found on him was to pay a telephone bill. The jury found defendant guilty of drug trafficking and possession of criminal tools. For these crimes, the trial court sentenced him to concurrent one-year terms of incarceration. Defendant timely appeals, raising the following assignments of error: I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE INDICTMENT WAS AMENDED WITHOUT RESUBMISSION TO A GRAND JURY. In this assignment, defendant argues that the trial court erred when it allowed the prosecutor to amend the indictment from drug trafficking of cocaine to drug trafficking of heroin. Crim.R. 7(D) specifically allows for the amendment of an indictment, "provided no change is made in the name or identity of the crime charged." Defendant correctly cites State v. Headley (1983), 6 Ohio St.3d 475, for the proposition that the type of controlled substance involved is an essential element of a crime and the indictment cannot be amended to cure an indictment that has omitted the type of controlled substance. The Revised Code has defined heroin as a schedule one drug and cocaine as a schedule two drug. R.C. 3719.41. - 4 - In the case at bar, however, the amendment of the indictment does not warrant a reversal. The amendment occurred in open court prior to trial in the following discussion: THE COURT: Ready to go? MR. KELLON: Your Honor, before we start, pursuant to Criminal Rule 7(D), the state moves to amend the first count of the indictment to read heroin as opposed to cocaine. The indictment reads that the defendant did knowingly sell or offer to sell a controlled substance, to wit, cocaine, that is in error or an error. The defendant is charged with drug trafficking, but it should be heroin as opposed to cocaine. THE COURT: Has that been the information discussed in the pretrials all along? MR. KELLON: Your Honor this is, this case was handled by the prosecutor before me on a prior rotation. This is the first time I've ever been assigned the cases. THE COURT: Well, let me ask counsel. Has it been your understanding it was heroin? MR. DEGROSS: Yes, your Honor. THE COURT: All right. Then I'll accept the amendment. MR. KELLON: Thank you, your Honor. (Tr. 4.) When defense counsel acknowledged he understood the charge to be for heroin, he implied that the defense was not misled or prejudiced by the error in the indictment. There can be no - 5 - prejudice if the pretrials were conducted with the defendant understanding that the case concerned the alleged sale of heroin, not cocaine. It is well established that the provision of Crim.R. 7(D) is for the protection of the defendant, who can waive it. State v. Cook (1987), 35 Ohio App.3d 20; State v. Howard (April 28, 1994), Cuyahoga App. No. 65004, unreported; State v. Curry (Dec. 17, 1992), Cuyahoga App. No. 63770, unreported. Accordingly, defendant waived any error by not objecting at the time of the amendment. Furthermore, defendant cannot show any prejudice, because defense counsel specifically stated that he understood that the drug in question was heroin. This assignment is overruled. II. DEFENDANT WAS DENIED DUE PROCESS OF LAW AND HIS RIGHT TO CONFRONTATION AND CROSS-EXAMINATION WHEN THE COURT ADMITTED INTO EVIDENCE RECORDED PHONE CONVERSATION WHERE THE CALLED [sic] COULD NOT BE IDENTIFIED. III. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT ADMITTED AN INTERCEPTED PHONE CONVERSATION OBTAINED IN VIOLATION OF THE LAW. In these two assignments, defendant contests the admissibility of the recorded phone conversation which returned the page from the informant. Defendant observes there were two voices in addition to that of the informant in the return call. Because his voice could not be identified in this call, he argues that the phone conversation should not have been allowed into evidence. This argument is without merit. - 6 - This court has previously stated that "direct and circumstantial evidence which reasonably identifies the defendant as a party to such telephone conversation establishes a sufficient foundation to admit evidence of the conversation in a criminal case." State v. Williams (1979), 64 Ohio App.2d 271. In the case at bar, detective Norman testified that he had the pager number of a suspected heroin seller. He instructed the informant to call the pager number from the pay phone upon which Norman had placed a microphone. After the informant paged the number as the detective watched, a return call was made to the pay phone and the informant ordered five bags of heroin for $80. The police recorded this call. Five to ten minutes later, the police observed a car with defendant in the passenger seat pull up, and the transaction with the defendant take place. This testimony offers sufficient circumstantial evidence to establish that defendant provided heroin in response to a request in the recorded phone call to purchase heroin. It is not necessary to know whether defendant took the call personally or received the request through another person. Finally, the details of the detective's testimony describe a defendant who cooperated in the recording as part of the plan for the controlled drug purchase. Where there is no evidence to the contrary, it is not necessary that an informant's consent be explicit or that the informant testify on this point. His consent for the intercepted call may be implied from the - 7 - circumstances. The recorded conversation, therefore, was properly admitted. IV. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE INFORMANT NOT HIS IDENTITY WAS REVEALED. In this assignment, defendant contends the trial court committed reversible error when it did not compel the state to reveal the identity of the informant. This court has recently reviewed the law on this issue as follows: Whether the identity of an informant must be disclosed requires a balancing of the defendant's constitutional right to cross-examine witnesses against the state's right to preserve anonymity of informants. State v. Phillips (1971), 27 Ohio St.2d 294, 297-298. An informant's identity must be revealed to a criminal defendant where the informant's testimony is (1) vital to establishing an element of the crime, or (2) helpful or beneficial to the accused in the preparation of a defense. State v. Butler (1984), 9 Ohio St.3d 156; State v. Williams (1983), 4 Ohio St.3d 74 Disclosure is generally not required when the informant's role is that of a mere tipster, State v. Parsons (1989), 64 Ohio App.3d 63, but when the degree of participation of the informant is such that the informant virtually becomes a state's witness, the balance swings in favor of disclosure, Williams, 76. See, also, State v. Brown (1992), 64 Ohio St.3d 649, 652; State v. Feltner (1993), 78 Ohio App.3d 279. Conversely, where disclosure would not be helpful or beneficial to the accused, the informant's identity should not be revealed. Williams, 76; Brown, 253. For example, when the informant's participation is witnessed by a police officer in its entirety, the informant's testimony is not critical. Williams, 76; see, also, State v. Baker (1993), 87 Ohio App.3d 186, 191-192. The defendant bears the burden of establishing the need for disclosure. Parsons, 69. A trial court's decision concerning the disclosure of an informant's identity will not be reversed absent an abuse of discretion. Feltner, 282; see, United States v. Diaz (C.A. 5, 1981), 655 F.2d 580, certiorari denied (1982), 455 U.S. 910, 102 S.Ct. 1257, 71 L.Ed.2d 448. An abuse of discretion connotes more than an error of law or judgment; it implies an attitude on the part of the trial court that is arbitrary, unreasonable, or - 8 - unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157. State v. Roberts (Feb. 9, 1995), Cuyahoga App. No. 66692, unreported at 13-14. In the case at bar, the trial court did not abuse its discretion. The informant's participation in the controlled buy was witnessed in its entirety by the police; therefore, the testimony was not critical. Williams, supra; Baker, supra. This assignment is overruled. V. DEFENDANT WAS DENIED DUE PROCESS OF LAW AND HIS RIGHT TO PRESENT A DEFENSE WHEN THE COURT WOULD NOT PERMIT A DEFENSE WITNESS TO TESTIFY. In this assignment defendant argues that he was denied a fair trial because the trial court would not let a defense witness testify. The court excluded her testimony because it violated the separation of witnesses order. On this issue, the Supreme Court has stated as follows: Exclusion of witnesses is ordinarily a decision within the sound discretion of the trial court. However, where the court seeks to exclude a witness for violating a separation order, there must be a showing that the party calling the witness consented to, connived in, procured or had knowledge of the witness' disobedience. Secondly, the testimony sought to be introduced must be important to the defense such that exclusion of the evidence constitutes prejudicial error. State v. Smith (1990), 49 Ohio St.3d 137, 142. In the case at bar, defendant has not established that the testimony of the excluded witness was prejudicial error. Defense counsel did not proffer the substance of Ms. Lopez's testimony. Nor has defendant explained how the testimony of this witness - 9 - would have changed the outcome since she did not witness the event when defendant was arrested. Accordingly, because defendant has not demonstrated that prejudice resulted from Ms. Lopez not being allowed to testify, this assignment is overruled. Defendant's sixth and eighth assignments concern the same issue and state as follows: VI. DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT PERMITTED EVIDENCE BOLSTERING THE CREDIBILITY OF THE INFORMANT WHO WAS NOT IDENTIFIED OR PRODUCED AS A WITNESS. VIII. DEFENDANT WAS DENIED A FAIR TRIAL BY REASON OF IMPROPER ARGUMENT BY THE PROSECUTOR. In these two assignments defendant argues that he was denied a fair trial by virtue of prosecutorial misconduct. "The conduct of a prosecuting attorney during trial cannot be made a ground of error unless the conduct deprives defendant of a fair trial." State v. Apanovitch (1987), 33 Ohio St.3d 19, 24. Defendant takes issue with various statements made by the prosecutor during closing arguments. The prosecutor stated that it was unnecessary for the informant to testify because Detective Norman was credible. The prosecutor also stated that a voice on the tape was defendant's, even though he acknowledged to the bench there was no direct evidence identifying defendant's voice. Reviewing the proceedings as a whole, we conclude these statements did not deprive defendant of a fair trial. Both statements in question were merely arguments based on the state's theory of the case. Defense counsel (1) was free to point out - 10 - that defendant's voice was never established as a voice on the recording and (2) had the opportunity to attack the credibility of Detective Norman and argue this point. Moreover, there was sufficient circumstantial evidence on which to base the prosecutor's theory. Because closing arguments are just that, arguments based on the evidence and reasonable inferences, these statements by the prosecutor were not so egregious so as to deprive defendant of a fair trial. Remarks during closing argument must be reviewed in their entirety to determine whether the remarks are prejudicial. State v. Moritz (1980), 63 Ohio St.2d 150. The identity of the caller is not necessary to the case since the police witnessed the controlled buy and found the marked money on defendant and the heroin on the buyer. Any failure to identify the defendant's voice in the telephone conversation does not detract from these facts. Accordingly, assignments six and eight are overruled. VII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THIS TRANSACTION WAS CONDUCTED IN VIOLATION OF LAW. In this assignment, defendant argues that the controlled buy did not comply with R.C. 3719.141. This statute proscribes the specific procedures that police must follow when executing a controlled buy. Defendant vaguely argues that the police did not comply with the proper procedures for returning the buy money to the police station. However, defendant has not stated how this non-compliance affects defendant's drug trafficking conviction. Nor is this court aware of any authority for mandating a reversal of a drug trafficking conviction because of the failure to follow - 11 - the procedures of R.C. 3719.141. Accordingly, this assignment is overruled. IX. DEFENDANT WAS DENIED DUE PROCESS OF LAWN [SIC] WHEN THE COURT OVERRULED A MOTION FOR JUDGMENT OF ACQUITTAL AS THE CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In this assignment defendant seems to raise both a sufficiency and manifest weight challenge to the conviction. Under either standard, this assignment is meritless. In reviewing a Crim.R. 29(A) motion, the trial court must view the probative evidence and inferences reasonably drawn therefrom in a light most favorable to the prosecution. State v. Martin (1983), 20 Ohio App.3d 172. If the court finds the evidence is such that "reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt, the issue is presented to the jury." State v. Bridgeman (1978), 55 Ohio St.2d 261. When reasonable minds cannot convict, a Crim.R. 29(A) motion must be granted, the charges should be dismissed, and the case should not go to the jury. Id. The standard for evaluating claims that a conviction is against the manifest weight of the evidence has been summarized as follows: Here the test is much broader. 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 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 - 12 - exercised only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Martin (1983), 20 Ohio App.3d 172, 175. Under either standard, defendant's conviction should stand. The state presented evidence that an informant called the pager number of a suspected heroin dealer. Minutes later the police recorded a call in which a person arranged to sell eighty dollars worth of heroin to the informant. Soon after, a car pulled up and the informant made an exchange with defendant. Defendant was apprehended with the marked money, and the informant had been given heroin. Viewing the evidence in the light most favorable to the state, we conclude there was sufficient evidence to support the trafficking charge. Similarly, the judgment was not against the manifest weight because it cannot be said that the jury lost its way and created a manifest miscarriage of justice by convicting defendant. Accordingly, this assignment is overruled. Judgment affirmed. - 13 - 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 Cuyahoga County 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. BLACKMON, P.J., and ABOOD*, J., CONCUR. DIANE KARPINSKI JUDGE *Judge Charles D. Abood, of the Sixth District Court of Appeals, sitting by assignment. 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 .