COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70810 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION RONALD WILLIAMS : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: MARCH 20, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-336013 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: ROBERT T. GLICKMAN (#0059579) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: PATRICK S. LAVELLE (#0062070) Suite 270, Skylight Office Tower Tower City Center 1660 West Second Street Cleveland, OH 44113 Also Listed: RONALD WILLIAMS #322-462 B.E.C.I. P.O. Box 540 St. Clairsville, OH 43950 - 2 - SPELLACY, J.: Defendant-appellant, Ronald Williams, ("appellant") appeals from his conviction of two counts of drug trafficking in violation of R.C. 2925.03 and one count of drug abuse in violation of R.C. 2925.11. Appellant assigns the following errors for our review: I. THE LOWER COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION FOR ACQUITTAL PURSUANT TO RULE 29 OF THE OHIO RULES OF CIVIL [SIC] PROCEDURE. II. THE JURY DETERMINATION IN THE LOWER COURT WAS AGAINST THE MANIFEST WEIGHT OF EVIDENCE. III. DEFENDANT'S CONVICTION VIOLATES THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT EACH ELEMENT OF ITS CASE. IV. THE STATE OF OHIO IMPROPERLY ARGUED FACTS NOT IN EVIDENCE IN CLOSING ARGUMENTS THAT SUBSTANTIALLY PREJUDICED THE APPELLANT AND DEPRIVED HIM OF DUE PROCESS OF LAW. V. APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES WAS VIOLATED WHEN THE TRIAL COURT ERRONEOUSLY ADMITTED STATE'S EXHIBIT THREE INTO EVIDENCE BY WAY OF STIPULATION. VI. THE STATE VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT BY INFORMING THE JURY THAT FACTS HAD BEEN STIPULATED TO, WHEN IN FACT, THEY WERE NOT. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. I. On March 18, 1996, appellant was issued a three-count indictment. Counts I and II charged appellant with drug - 3 - trafficking in violation of R.C. 2925.03(A)(2). Both counts contained a furthermore clause and a violence specification. Count III charged appellant with drug abuse, in violation of R.C. 2925.11 and contained two furthermore clauses and a violence specification. On April 22, 1996, a jury trial was held. This trial, however, was declared to be a mistrial, and a second jury trial was held on May 6, 1996. Subsequently, appellant was found guilty on all three counts. On May 16, 1996, appellant was sentenced for a term of five to fifteen years on counts I and II, and for a term of four to ten years on count III. All counts were to run concurrently. II. On February 8, 1996, in response to complaints of drug sales in and around the area of East 93rd and Easton, Cleveland, Ohio, Detectives Richard Milligan and Terry Preston of the City of Cleveland Police Department Street Crimes Unit conducted an undercover surveillance of apparent drug activity. At trial, Detective Milligan testified he observed appellant on the corner of East 93rd and Easton waiving vehicles over as they passed by him. Detective Milligan further stated that he decided to approach appellant in his vehicle to make a drug purchase. Detective Milligan told appellant that he needed a "twenty". (Tr. 34). Appellant left Detective Milligan's vehicle, and proceeded to walk up a driveway to an abandoned house where he had a conversation - 4 - with two other males. (Tr. 35). Subsequently, appellant returned to Detective Milligan's vehicle and gave Detective Milligan a rock of cocaine in exchange for twenty dollars. Detective Preston also testified at trial. In particular, Detective Preston testified that he observed appellant's activities and the drug transaction between appellant and Detective Milligan. Detective Preston stated that he observed appellant, after the transaction with Detective Milligan, walk up to a heavy set male and give the "buy money" to the male. (Tr. 77). Detective Preston further testified that he radioed the "takedown unit", provided the unit with a description of appellant, and appellant was arrested. (Tr. 79). III. For purposes of this appeal, appellant's first, second and third assignments of error will be addressed together. Appellant contends the trial court's denial of his Crim.R. 29 motion and his subsequent conviction are contrary to the law because there was insufficient evidence to establish each and every element of the defense beyond a reasonable doubt. In particular, appellant asserts the state failed to prove the substance alleged to be cocaine was, in fact, cocaine. We find these assignments of error are not well-taken. Under Crim.R. 29, a trial court "shall not order an entry of judgment of acquittal where the evidence is such that reasonable minds can reach different conclusions as to whether each material - 5 - element of a crime has be proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, at syllabus. "A motion for judgment of acquittal under Crim.R. 29(A) should be granted only where reasonable minds could not fail to find reasonable doubt." State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; citing Bridgeman, supra. In the present case, appellant argues that both the trial court's denial of his motion for acquittal and his conviction were contrary to law. The tests an appellate court must apply in reviewing a challenge based on a denial of a motion for acquittal and a challenge based weight of the evidence to support a conviction are similar. A challenge based on a denial of a motion for acquittal is reviewed under the same standard as a challenge based on the sufficiency of the evidence. State v. Bell (May 26, 1994), Cuyahoga App. No. 65356, unreported at 26. In State v. Jenks (1991), 61 Ohio St.3d 259, 273, the Ohio Supreme Court set forth the test an appellate court should apply when reviewing the sufficiency of the evidence to support a conviction: The relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In other words, an appellate court's function when reviewing the sufficiency of the evidence is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Eley [(1978), 56 Ohio St.2d 169]. - 6 - When reviewing a challenge based on manifest weight of the evidence, an appellate court will not reverse the jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all elements of an offense have been proven beyond a reasonable doubt. Eley, supra at syllabus. In his first, second and third assignments of error, appellant argues that the substance sold to Detective Milligan was not cocaine. At trial, Detective Milligan testified that after he completed the transaction with appellant, he placed the cocaine in a brown envelope which was then placed into an evidence bag. Subsequently, the evidence bag containing the cocaine was brought to trial and shown to the jury. The jury was then informed by the trial court, and told to accept as true, that the parties had stipulated to the fact that the substance contained in the bag was, in fact, cocaine. The bag containing the cocaine was then admitted into evidence. Additionally, the trial court, by stipulation of the parties, also admitted into evidence the lab report identifying the substance as cocaine. The existence of a controlled substance is an essential element of both R.C. 2925.03 and 2925.11. Based on the foregoing, we conclude that there was substantial evidence presented upon which the jury could conclude beyond a reasonable doubt that the substance which appellant gave to Detective Milligan was cocaine. Accordingly, appellant's first, second and third assignments of error are overruled. - 7 - IV. Appellant's fourth and sixth assignments of error will also be addressed together. In both assignments of error, appellant argues that the state improperly argued during its closing argument facts not in evidence. The state is entitled to some latitude in its closing argument. State v. Maurer (1984), 15 Ohio St.3d 239. The test for prosecutorial misconduct in closing argument is whether the statements were improper and, if so, whether they prejudicially affected the substantial rights of the accused. State v. Lott (1990), 51 Ohio St.3d 160, 166. In closing arguments, prosecutors may not express their personal beliefs regarding guilt and credibility, and may not allude to matters outside of the record. State v. Smith (1984), 14 Ohio St.3d 13, 14. In the case sub judice, the defense failed to make contempora- neous objections to the prosecutor's statements; thus, each alleged error has been waived. State v. DeNicola (1955), 163 Ohio St. 140, paragraph 3 of the syllabus; see also State v. Wogenstahl (1996), 75 Ohio St.3d 344. Accordingly, our review is discretionary and is guided by the plain error standard. Crim.R. 52(B). In order to prevail under this standard, appellant must establish that the outcome of his trial would clearly have been different had the alleged errors not occurred. State v. Waddell (1996), 75 Ohio St.3d 163. "Notice of plain error is to be taken with the utmost caution, under exceptional circumstances and only to prevent a - 8 - manifest miscarriage of justice." State v. Landrum (1990), 53 Ohio St.3d 107. Appellant asserts the following statements made by the prosecutor during closing arguments were improper and prejudicial: "Now, did he distribute a controlled substance? Yeah. He did. He distributed it to Detective Milligan." (Tr. 107). "Now the third count is the easiest of all. The third count is drug abuse, possession of cocaine. Obviously, in order to give the cocaine to Detective Milligan for the $20, he was in possession of cocaine." (Tr. 107) "The only issue before you is, did this defendant take this small rock of crack cocaine, which is now powder, to tell you the truth - - and you'll have an opportunity to take this back in the jury room and view it, and you'll be able to just see how really fragile this substance is. But did he take that small rock of crack cocaine and sell it to Detective Milligan? The only evidence before you is that he did." (Tr. 109). "Well, here's what the defendant was wearing on the night of his arrest, the very same clothing worn by the person who sold the crack cocaine to Detective Milligan . . . ." (Tr. 111). " . . . but the only evidence in this case is the testimony of those detectives, and it was uncontroverted. He sold crack cocaine on February 8, 1996." (Tr. 113). "Well, he sold a controlled substance. That's been stipulated to. This is cocaine. It's a schedule II drug, as indicated in the indict- ment." (Tr. 106). Appellant contends that the foregoing statements made by the prosecutor during closing argument were unsupported by any evidence offered or admitted at trial. In particular, appellant asserts no - 9 - evidence was presented that the substance given to Detective Milligan by appellant was cocaine. The prosecution made these remarks in response to the testimony elicited from Detective Milligan and the exhibits which were stipulated to by the parties. In light of the entire record, these comments can hardly be regarded as "outcome determinative" such that they would satisfy the plain error standard. State v. D'Ambrosio (1992), 67 Ohio St.3d 597. Thus, the prosecution's remarks were harmless. Accordingly, appellant's fourth and sixth assignments of error are overruled. V. In his fifth assignment of error, appellant asserts the trial court erroneously admitted state's exhibit three into evidence by way of stipulation. In the present case, state's exhibit number three is a copy of the lab report reflecting the substance sold by appellant to Detective Milligan was cocaine. At trial, the court admitted state's exhibit number three into evidence by way of stipulation of the parties, and no objections were made by appellant's counsel regarding the admission of the exhibit. As stated supra failure to object constitutes waiver. Thus, plain error must exist to find that the trial court committed reversible error. In the case sub judice evidence was submitted and testimony was elicited that the substance contained in the evidence bag was, in fact, cocaine. Therefore, the trial court's admission of the - 10 - lab report cannot be regarded as "outcome determinative" and plain error does not exist. Accordingly, appellant's fifth assignment of error is overruled. Judgment affirmed. - 11 - 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, P.J. and ANN DYKE, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This 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(B) 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 .