COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70857 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION DONNIE HATCHER, JR. : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: JULY 31, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-330382. JUDGMENT: AFFIRMED IN PART AND REVERSED AND REMANDED FOR RESENTENCING. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Martina Kulick Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: James A. Draper Cuyahoga County Public Defender Jean M. Gallagher Assistant Public Defender 1200 West Third Street N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 SWEENEY, JAMES D., C.J.: Defendant-appellant Donnie Hatcher, Jr. appeals from his convictions for: 1) preparation for shipment, shipment, transporting, delivering, preparing for distribution or distributing cocaine in violation of R.C. 2925.03(A)(2); 2) possession of cocaine in an amount greater than the bulk amount but less than three times the bulk amount in violation of R.C. 2925.03(A)(4); and 3) possession of criminal tools, money and/or motor vehicle, in violation of R.C. 2923.24. The appellant was sentenced to a term of incarceration of five to fifteen years on counts one and two, to be served concurrently, with three years of actual incarceration on count one. On count three the court imposed a term of incarceration of one year, to be served consecutivelywith counts one and two. A mandatory fine of $5,000 was imposed on count one, but the required fine was waived on count two. Michael Robinson, Lester Whittsette and Dale Barber, a juvenile, were arrested at the same time as the appellant. Although Michael Robinson was tried with the appellant, he was ultimately acquitted by the jury. Prior to trial, the court was made aware that counsel for Mr. Robinson and counsel for the appellant are law partners. Both attorneys stated on the record that this potential conflict had been discussed with their respective clients (T. 19, 20). Counsel for Robinson indicated to the court that there was no problem under United States v. Bruton. The trial court inquired of the appellant, personally, as to his readiness to proceed, and he answered in the affirmative (T. 24). The court proceeded to hear and deny the appellant's motion to suppress evidence. After the suppression hearing, but prior to trial, Lester Whittsette pled guilty to: 1) possession of cocaine, less than the bulk amount; and 2) preparation for shipment, shipment, transporting, delivering, preparing for distribution or distributing cocaine. Whittsette testified at trial on behalf of the State, but he was made no promises as to his sentencing in return for his testimony (T. 558.) There is no evidence in the record as to sanctions imposed upon Barber by the juvenile justice system. Also prior to trial, the appellant requested that the court prohibit the State from introducing evidence as to the specifications in the indictment regarding the appellant's past felony conviction for drug trafficking. Over the State's objection, the court granted the appellant's request and agreed that the prior conviction would not be mentioned (T. 522-526). At trial the State presented the testimony of Lester Whittsette, Cleveland Police Detectives James Kooser, Ronald Ehrbar and Timothy Gaertner, and Scientific Examiner Cynthia Lewis- Dakota. The following facts were placed before the court throughout the testimony of the witnesses. On May 25, 1995, the appellant picked up Whittsette, Robinson, and Barber in his Blazer and proceeded to Dove Park where they played basketball with five other people. The game was interrupted for a few minutes when a black Blazer arrived. The appellant approached the black Blazer and thereafter was seen with a bag in his hands. After the appellant placed this bag under the seat of his own Blazer, the basketball game continued. At some point the appellant injured his ankle and the four returned to their neighborhood in the appellant's Blazer. Because of the appellant's injury, Whittsette drove the vehicle. The appellant was seated in the front passenger position, Robinson and Barber were in the back seat. On the way home, they stopped at the store and the appellant purchased beer. After this purchase, Whittsette proceeded to drive down Greenwich and turn right onto 112th Street. Garett Anderson was standing on the street and, as the vehicle turned, he approached. Anderson leaned into the open passenger window and spoke with the appellant. Suddenly an unmarked police vehicle came around the corner. Whittsette testified that the appellant began screaming go, go, go, Vice (T. 565). Cleveland Police Detectives Geartner, Kooser, and Ehbar testified that these, or substantially similar words, were spoken by Whittsette (T. 623, 682, 698). The police observed the appellant holding a brown paper bag apparently showing Anderson the contents (T. 623). Whittsette, Robinson and Barber, cooperated with the instructions given by the police. The appellant, however, attempted to exit the vehicle and leave the scene, but was prohibited by the police. When Detective Kooser looked inside the vehicle, he observed the cocaine in an open brown bag sitting on top of the beer (T. 624). Anderson fled but was apprehended by Detective Geartner as he ran down the street. The detectives found six ounces of cocaine inside of a brown paper bag, each ounce in its own plastic bag. The bag containing the cocaine was placed on top of the beer which was in a larger brown bag. The officers found that the beer and cocaine had been placed on the floor of the Blazer's front passenger side, in between the appellant's feet. Whittsette testified that the cocaine did not belong to him. Ms. Lewis-Dakota testified that she performed a drug analysis on the contents of the six plastic bags recovered by the detectives. In her opinion, the plastic bags contained a total of 167.52 grams of cocaine (T. 714). Detective Kooser testified that the street value of the recovered cocaine was approximately $7,200.00 (T. 632). A total of $91.00 was recovered from the four individuals inside the Blazer. The appellant presented the testimony of Robert Smith, Irene Bell, Dale Barber and Donnie Hatcher, Sr. Three of the witnesses, Mr. Smith, Ms. Bell, and Mr. Barber, are neighbors of the appellant. Each testified that Anderson was not standing next to the appellant's Blazer, but rather was down the street near Mr. Smith's garage. The witnesses also testified that it was the police who brought Anderson to the scene, but that the police did not place him under arrest. Barber testified that during the basketball game, Whittsette left in the appellant's Blazer to answer a page. Whittsette was asked to bring back something to drink and he returned with beer forty-five minutes later. No one, save Whittsette, drank any beer. Barber testified that he, Robinson, and the appellant entered the truck and Whittsette drove home. Barber also testified that the appellant never reached in the bag containing the beer (T. 831). The appellant sets forth seven assignments of error, five through his counsel and two pro se. This court will first consider the assignments of error raised by counsel. The appellant's first assignment of error raised by counsel: MR. HATCHER'S RIGHTS UNDER ART. I, SECT. 5, 10 AND 16 OF THE OHIO CONSTITUTION AND THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL WHEN THERE WAS INSUFFICIENT EVIDENCE OF VIOLATIONS OF R.C. 2925.03 (A), AND R.C. 2923.24, AND THERE WAS NO JURY VERDICT ON THE PRIOR CONVICTIONS IN COUNTS ONE AND TWO THAT WERE NECESSARY FOR THE OFFENSES OF HIGHER DEGREE. The appellant argues that the trial court erred in failing to grant his motion for acquittal pursuant to Crim.R. 29 because his convictions are based upon insufficient evidence. Specifically, the appellant states that there was insufficient evidence presented to the jury: 1) that he prepared for shipment, shipped, transported, delivered, prepared for distribution or distributed cocaine that he knew or had a reasonable belief was intended for sale or resale by himself or another; 2) that he possessed either money or a motor vehicle as a criminal tool; and 3) of the appellant's prior drug trafficking conviction or the degree of offense as required by R.C. 2945.75(A)(2). In challenging the sufficiency of the evidence, the relevant question 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. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. The weight of the evidence and the credibility of the witnesses are primarily a matter for the trier of fact, and a reviewing court will not reverse a verdict where there is substantial and credible evidence upon which the trier of fact could reasonably conclude that all elements of the offense have been proven beyond a reasonable doubt. State v. DeHass (1967), 10 Ohio St.2d 230. R.C. 2925.03(A)(2) states that no person shall knowingly ... 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. In order to sustain a conviction for drug trafficking, the State must produce direct or circumstantial evidence that the defendant did one of the following: 1) knowingly prepare the cocaine for shipment; 2) ship, transport or deliver the cocaine; 3) prepare the cocaine for distribution; or 4) distribute the cocaine. State v. Anderson (Nov. 27, 1996), Cuyahoga App. No. 69620, unreported. Circumstances to be considered in evaluating the evidence are the nature of the discovered substance, and the accused's dialogue and course of conduct. Id. citing to State v. Patterson (1982), 69 Ohio St.2d 445 and State v. Ballard (May 31, 1990), Cuyahoga App. No. 56676, unreported. In the case sub judice, there is sufficient evidence upon which the jury could have convicted the appellant of transporting or shipping cocaine in violation of R.C. 2925.03(A)(2). At the time the police detectives noticed the appellant's vehicle, the appellant was in the process of showing what turned out to be cocaine to a third party who was leaning into the motor vehicle. Upon investigation, the police found six ounces of cocaine, each ounce separately wrapped, in a plastic bag located on the floor of appellant's motor vehicle and in between the appellant's feet. The appellant made no statements, but did try to exit the vehicle even after directed otherwise by the officers. Viewing this evidence, as the court must, in the light most favorable to the prosecution, it is evident that a rational trier of fact could reasonably have believed that the appellant was in the midst of a drug sale that was interrupted by the police. This circumstantial evidence is sufficient upon which to base a conviction for transporting cocaine from the basketball court to the point of an attempted sale. Likewise, there is sufficient evidence upon which to convict the appellant for possession of criminal tools in violation of R.C. 2923.24. This statute reads in pertinent part: (A) No person shall possess or have under his control any substance, device, instrument, or article with purpose to use it criminally. (B) Each of the following constitutes prima-facie evidence of criminal purpose: *** (3) Possession or control of any substance, device, instrument, or article commonly used for criminal purposes, under circumstances indicating such item is intended for criminal use. It must first be noted that the appellant correctly points out that the State presented no evidence which would attribute any specific amount of money to the appellant. Therefore, the State has presented insufficient evidence that money was possessed by the appellant as a criminal tool. However, it is equally clear that the State presented sufficient evidence that the appellant's Blazer was used as a criminal tool. As previously indicated, the evidence, viewed in the light most favorable to the prosecution, indicates that the appellant made a drug connection while playing basketball, transported or shipped the drugs acquired there to an assignation in his own neighborhood, and at the time of the arrest was in the midst of an interrupted drug sale. This circumstantial evidence is sufficient upon which to base a conviction for possession of criminal tools, a motor vehicle. The appellant also asserts that the State failed to present any evidence of the appellant's prior trafficking conviction, and thus, that the jury lacked a requisite element necessary for conviction under both R.C. 2925.03(A)(2) and R.C. 2925.03(A)(4). It must be pointed out that the State does not contest the fact that although the appellant was indicted for having and transporting cocaine in excess of three times the bulk amount, a violation of R.C 2925.03(A)(6), the verdict form presented to the jury only permitted the jury to make a finding of guilt or innocence as to possession and/or transportation of cocaine in an amount greater than one times the bulk amount but less than three times the bulk amount, a violation of 2925.03(A)(4). Therefore, distilled, the appellant's argument is that the prior conviction specifications are degree-enhancing elements of both R.C. 2925.03(A)(2) and R.C. 2925.03(A)(4), and that the appellant was entitled to have the jury make a determination on each element of each crime. Where the existence of a prior conviction enhances the degree of a subsequent offense, it is an essential element of the crime, and the State must prove it beyond a reasonable doubt. State v. Allen(1987), 29 Ohio St.3d 53. This court has recently considered a case in which the appellant argued to the court that the prior conviction should not be placed in front of the jury. The court withheld the information, and on appeal an argument was made that since the jury had failed to make a determination on each element of the crime, the conviction should be overturned. This court held that: under the invited-error doctrine, a party will not be permitted to take advantage of an error which he himself invited or induced the trial court to make. State v. Nievas (May 22, 1997), Cuyahoga App. No. 70645, unreported. The identical issue is now before this court, and as in Nievas, supra,while it may have been error for the court to refuse the State's request to present the evidence to the jury, it was the appellant who requested that this evidence be kept from the jury in order to avoid the prejudicial effect inherent in having the jury exposed to appellant's past felony background. The appellant willingly stipulated to the existence of the prior conviction for this very reason. This court will not permit the appellant to take advantage of the error he invited the court to make. The appellant's first assignment of error raised by counsel is overruled. The appellant's second assignment of error raised by counsel: THE MISCONDUCT OF THE PROSECUTOR IN MAKING STATEMENTS THAT WERE CALCULATED TO MISLEAD THE JURY, WENT BEYOND THE RECORD, AND WERE NOT SUBSTANTIATED BY THE EVIDENCE VIOLATED MR. HATCHER'S RIGHTS TO DUE PROCESS, A JURY TRIAL, AND A FAIR TRIAL AS GUARANTEED BY ART. I, SECT. 5, 10 AND 16 OF THE OHIO CONSTITUTION AND THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. The appellant asserts in the second assignment of error that he was prejudiced by the opening, closing and sentencing arguments of the State. The appellant delineates seven separate instances of prosecutorial misconduct: 1) in opening argument the State inaccurately asserted that Mr. Whittsette was made no promises for his testimony; 2) the prosecutor inaccurately argued during closing that taking away the appellant's liberty was not the jury's decision; 3) the prosecutor incorrectly argued that the failure to dust for fingerprints was futile since some surfaces never leave water marks; 4) the prosecutor, without evidence in the record to support his statement, argued in closing that defense witnesses were told what to say; 5) the prosecutor misled the jury by arguing that being close to drugs is probable cause to arrest; 6) the prosecutor misquoted the testimony of Dale Barber; and 7) at sentencing, the state attempted to manipulate the process by arguing that the appellant was a professional. The Supreme Court has held that the conduct of a prosecuting attorney during trial cannot be made a ground of error unless the conduct deprives the defendant of a fair trial. State v. Maurer (1984), 15 Ohio St.3d 239. See also State v. Keenan (1992), 66 Ohio St.3d 402, citing to State v. Apanovitch (1987), 33 Ohio St.3d 19. Opening and closing arguments are not evidence but are intended only to advise the jury as to what counsel expects the evidence to show. State v. Turner (1993), 91 Ohio App.3d 153. The Supreme Court also noted that the effects of any prosecutorial misconduct must be considered in the context of the entire trial, one factor relevant to the due-process analysis is whether the misconduct was an isolated incident in an otherwise properly tried case. Kennan, supra at 410. The test regarding prosecutorial misconduct in closing argument is whether the remarks were improper, and if so, whether they prejudicially affected a substantial right of the defendant. State v. Johnson (May 25, 1995), Cuyahoga App. No. 67286, unreported. In deciding whether or not the defendant was denied a fair trial, the court must determine whether the fact finder would have found the defendant guilty absent the prosecutor's remarks. State v. Smith (1984), 14 Ohio St.3d 13; Maurer, supra. In addition, this court notes that the failure to raise objections to improper arguments constitutes a waiver, unless the errors are cumulatively so egregious that the appellant was denied due process. Keenan, supra. In each of the appellant's assigned errors, no objection was raised by counsel. This court will proceed, arguendo, as though the errors, if substantiated, were sufficient to deny the appellant due process. Taking the appellant's assertions in order, the prosecutor stated in the opening argument that, [Mr. Whittsette will] also testify that he pled guilty in this case to possession of cocaine and to preparation for shipment of cocaine. I haven't promised him anything. He's waiting sentence to this particular judge. (T. 539.) The appellant argues that because, as a result of the plea, Whittsette was eligible to receive a lesser sentence than the appellant, he was therefor given something in exchange for his testimony. While the appellant may find the prosecutor's statement objectionable, it is, nevertheless, a true statement. The prosecutor has no control over the sentence imposed upon the appellant, and the record is devoid of any evidence that the prosecutor even attempted to do so. The prosecutor was informing the jury of the evidence he expected to elicit during his case in chief, and in fact, this testimony was given by Mr. Whittsette. The appellant was not prejudiced by the opening statement made by the State. Likewise, the appellant takes issue with the prosecutor's statement made in closing argument that: We have an indefinite attitude to the basic notion of fairness, accuracy and they are necessary and important in a case. We want to take away his liberty. That's not my decision. That's not your decision. That's the judge's decision. Our role is to present the evidence. Your role is to find out the truth, decide what the facts are. (T. 919.) This statement made by the prosecutor is a plain, straightforward statement of the law, and while it is the court's responsibility to inform the jury of the law they must apply, no prejudice accrues to the appellant from the prosecutor's statement of such a simple truth. The appellant next argues that during closing argument, the prosecutor improperly used the following analogy to demonstrate why the police failed to take fingerprints from the bags containing the drugs: [The police] didn't call the pagers, they didn't fingerprint this stuff, they didn't find out who the pager belonged to when they pulled it off defendant Hatcher. .... Let's talk about water damage at a house as an example defense attorney used. Some guy tells you before you buy a house that there is no water damage. Do you go down in the basement and look? Sure. If you see the water marks, then you know. Is that a good example for this? No, because Detective Kooser didn't tell you there wasn't fingerprints on here. What he told you was if you went down in the basement and looked at the walls in my basement, you'll find out I have a surface on there that doesn't leave water marks. I have a surface that I just painted. It's not a good example. (T. 923.) Once this statement is read in context, it is clear that the prosecutor's remarks were used to illustrate the point made by Detective Kooser at trial. The detective testified while it is possible to lift a fingerprint from a plastic bag, in his experience the attempt is rarely successful (T. 640, 654). No prejudice accrued to the appellant based upon the State's reflection of the trial testimony. In the next instance given by the appellant, he correctly asserts that the prosecutor made the following statement without a basis in the record: [The defense witnesses] were real sure about one thing. They were real sure Garett Anderson wasn't there. They were very certain of that because that's what they've been told to say, and then when it comes down to the nitty gritty facts, they didn't even get close to knowing where the other cars came from, not even close. (T. 928.) While this statement was improper, alone and in the context of an otherwise properly tried case, it is not sufficient to so prejudice the appellant as to deny him a fair trial. Next, the appellant argues that the prosecutor misled the jury when he made the following argument: Now, remember an arrest is much different from a conviction because when you're arrested, all of us know and we all agree that you are presumed innocent at that point in time. Police officers have the discretion to arrest when they believe they have probable cause. Probable cause is much lower than a finding of guilt which is beyond a reasonable doubt. When you find somebody close to drugs, you have probable cause. You make arrests. It's common sense. We arrested him because he was close to drugs. They arrested everybody. They decided and they have discretion to let Garett Anderson go. It's their job. They can make that decision. But what happens after you make that arrest? Things turn up. People come forward and testify for the State much like Lester Whittsette. That's how you continue your investigation. That's why they arrested him on mere proximity. It's probable cause. They're allowed to do it. They can arrest whoever they want and they don't have to arrest unless they want to. (T. 930-931). Once more, the appellant has taken the prosecutor's words out of context and ascribed a meaning not intended to the actual words used. The prosecutor merely reiterated for the jury the basis upon which a police officer may arrest a suspect. In reviewing the prosecutor's statement in its entirety, no prejudice accrued to the appellant. For the sixth error, the appellant correctly points out that the prosecutor misstated the facts during closing argument when he stated that Dale Barber admitted that the appellant had the drugs and was showing them to Mr. Anderson. A review of Barber's testimony reveals that Barber asserted that Mr. Anderson was near the garage of Mr. Smith and was never near the window of the Blazer (T. 829, 830). Barber also testified that the appellant never reached into the bag later found to contain drugs (T. 831). This misstatement of facts, even when combined with the prosecutor's improper argument impugning the testimony of appellant's witnesses, is not sufficient to amount to deny the appellant a fair trial. Finally, the appellant presents as error the following argument made to the judge during sentencing: The other thing that concerns me about this particular case is the attempts of this defendant to manipulate the process itself. You heard the witnesses who came in and testified for him, Your Honor. All I have to say based on that testimony is he's a professional,and I ask you to sentence him accordingly, Your Honor. (T. 996.) The appellant points out that the witnesses, Mr. Smith and Ms. Bell, presented to the court were law abiding neighbors. It is clear from the context of the argument presented to the court that the State was merely attempting to reargue the issue of the credibility of the appellant's witnesses. The appellant has failed to demonstrate how this argument inured to his prejudice when the terms of incarceration imposed by the court were within the parameters set forth by the state legislature, and within the court's sole discretion. The appellant has failed to illustrate any prejudice to the appellant resulting from the arguments made by the prosecutor to the jury in opening and closing arguments and to the judge at the time of sentencing. The appellant's second assignment raised by counsel is overruled. The appellant's third assignment of error raised by counsel: MR. HATCHER WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, GUARANTEED BY ART. I, SECT. 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN COUNSEL FAILED TO OBJECT TO THE PREJUDICIAL ARGUMENT OF THE PROSECUTOR OR REQUEST A LIMITING INSTRUCTION. In the third assignment of error, the appellant argues that the appellant was rendered ineffective assistance of counsel because counsel failed to object to the above seven statements of the prosecutor and the failure to request a limiting instruction. To prevail on a claim for ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668. A properly licensed attorney is presumed to execute his duties in an ethical and competent manner. Ineffectiveness is demonstrated by showing that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment. State v. Hamblin (1988), 37 Ohio St.3d 153. To establish prejudice, a defendant must show that there is a reasonable possibility that, but for counsel's errors, the result of the proceeding would have been different. Strickland, supra. In the case sub judice, the appellant is unable to meet this burden. As stated in the previous assignment of error, the two errors made by counsel, that of misstating the testimony of Dale Barber and that of impugning the appellant's witnesses, were not so egregious as to accrue prejudice to the appellant or to deny the appellant a fair trial. Appellant's counsel's failure to object to statements which were not prejudicial to the appellant, and failure to request a limiting instruction regarding those alleged errors, were not so deficient as to deny the appellant a fair trial. The appellant has failed to show a reasonable possibility that the result of the trial would have been different. The third assignment of error raised by counsel is overruled. The fourth assignment of error raised by counsel: WHEN MR. HATCHER WAS CONVICTED OF VIOLATIONS OF R.C. 2925.03(A)(2) AND (A)(6), THE CONVICTION FOR POSSESSION OF COCAINE IS IN VIOLATION OF R.C. 2941.25 (ALLIED OFFENSES) AND A DENIAL OF MR. HATCHER'S RIGHTS TO PROTECTION FROM DOUBLE JEOPARDY GUARANTEED BY ART. I, SECT. 10 OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. This court must first note that the appellant was convicted of offenses pursuant to R.C. 2925.03(A)(2) and (A)(4), and was not convicted of trafficking in violation of R.C. 2925.03(A)(6). While the appellant has provided support for his argument that his convictions are allied offenses of similar import pursuant to R.C. 2941.25 and as delineated by the Supreme Court in Newark v. Vazirani (1990), 48 Ohio St.3d 81, this court has previously determined that preparation for shipment, etc. and possession are not allied offenses. See State v. Williams (1995), 105 Ohio App.3d 471. The appellant's fourth assignment of error raised by counsel is overruled. The appellant's fifth assignment of error raised by counsel: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ARBITRARILY REFUSED TO CONTINUE SENTENCING, STATED THAT IT WOULD NOT CONSIDER AN AFFIDAVIT OF INDIGENCE BECAUSE THE DECISION CONCERNING INDIGENCE FOR PURPOSES OF THE MANDATORY FINE HAD ALREADY BEEN MADE, AND IMPROPERLY CONSIDERING HEARSAY AND OTHER ACTS TESTIMONY IN SENTENCING. The appellant asserts that the trial court erred in refusing to grant a continuance prior to sentencing so that counsel would be able to secure the appellant's affidavit of indigency. This assignment of error is well taken, and this case must be remanded for resentencing. The trial court is required to impose a fine in drug trafficking offenses pursuant to R.C. 2925.03(H), State v. Powell (1992), 78 Ohio App.3d 784; State v. Cravens (1988), 42 Ohio App.3d 69. A court may not withhold imposition of a mandatory fine except when a defendant is indigent and the court determines that he/she is unable to pay the fine. This court has held, in a case requiring the imposition of a mandatory fine, that it is error for the court to proceed from the trial directly to sentencing when a continuance has been requested for the purposes of obtaining an affidavit of indigency. State v. Roberts (Feb. 9, 1995), Cuyahoga App. No.66692, unreported. The rationale behind finding this ruling by the court to be an abuse of discretion is that, until the verdict is rendered, the appellant has had no need to prepare such an affidavit. State v. Benedict (Nov. 3, 1995), Washington App. No, 94 CA 28, unreported. Therefore, in this instance the trial court abused its discretion in proceeding directly to sentencing without permitting the appellant's requested continuance. The fifth assignment of error raised by appellant's counsel is well taken. The first assignment of error raised by the appellant pro se: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO RULE UPON AN ACTUAL CONFLICT OF LAW, RELATING TO THE CO-COUNSELS FOR THE DEFENSE, BY REMAINING SILENT ON THE RECORD THE TRIAL COURT DEPRIVED APPELLANT OF HIS FIFTH AND FOURTEENTH AMENDMENT RIGHTS GUARANTEED UNDER THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION. The appellant appears to be arguing that the trial court abused its discretion when, after being informed by the prosecutor that counsel for the appellant and counsel for Michael Robinson are partners in law, it permitted the trial to go forward. The appellant also asserts that the court erred in overruling his motion for a severance of trial. Any potential error committed by the court in permitting the trial to go forward with co-defendants being represented by law partners was waived by the appellant. Appellant's counsel placed no request before the court that this potential conflict be remedied in any manner, he merely informed the court: my client understands the potential conflict (T. 20). When the court asked the appellant personally if he was ready to proceed to trial he answered in the affirmative (T. 24). The appellant bypassed his opportunity to inform the court, at a point where the court could act, that the potential conflict was of concern to him. Further, the appellant has failed to demonstrate that any actual prejudice has resulted. The appellant also argues that the court should have granted he request made by his counsel to try him separately from his co- efendants. The Supreme Court has held that the granting of a co- efendant's motion for separate trials is within the discretion of he trial court, and absent an abuse of that discretion, the trial ourt's determination will not be disturbed. State v. Daniels 1993), 92 Ohio App.3d 473. The test is whether a joint trial is o manifestly prejudicial that the trial judge is required to xercise his or her discretion in only one way, by severing the rial. A defendant must show clear, manifest and undue prejudice nd a violation of a substantive right resulting from the failure o sever. State v. Schiebel (1990), 55 Ohio St.3d 71. The burden s upon the appellant to demonstrate prejudice when such a motion s denied. Id. In the case sub judice, the motion was made to the court prior o the hearing on the motion to suppress, and prior to Whittsette's lea.The court stated: I think I should decide now or overrule t for the purposes of the suppression hearing. If you want to ring it up for the purpose of the trial, please feel free. (T. 3.) The issue of severing the co-defendants' trials was not raised rior to trial, thus, the appellant has waived the issue by failing o raise it at time when the court could take action. Assuming arguendo, that the appellant had properly raised the ssueprior to trial, it is clear that the appellant has failed to emonst rate any abuse of discretion as required under Schiebel, upra. The appellant's first assignment of error raised pro se is verruled. The appellant's second assignment of error raised pro se: TRIAL COUNSEL WAS INEFFECTIVE WHEN HE CHOSE A TRIAL STRATEGY THAT FORECLOSED UPON A COGNIZANT LEGAL DEPRIVATIONRELATING TO THE INVESTIGATORY STOP AND PROFILING USED BY THE STATE WHICH ENDED IN AN ILLEGAL SEARCH AND SEIZURE, A VIOLATION OF THE FOURTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND CORRESPONDING ARTICLES OF THE OHIO CONSTITUTION. The appellant argues that he was deprived effective assistance f counsel by counsel's failure to adequately cross-examine the olice officers during the motion to suppress. The appellant sserts that he was subject to an investigatory stop based upon a rofile used by the police and not based upon any articulable uspicion of criminal behavior. The tests for determining whether a defendant was rendered neffective assistance of counsel are set forth in the appellant's hird assignment of error raised by counsel, supra. The testimony iven by Cleveland Police Detective James Kooser during the hearing n the motion to suppress was consistent with the testimony given t trial, and after careful review, this court finds that the ppellant was not rendered ineffective assistance of counsel at the earing on the motion to suppress. During the hearing, Officer Kooser testified that he has been police officer in Cleveland for ten years and has made a few undred arrests. Based upon his training and experience, Officer ooser believed that a drug transaction was in progress. As the olice vehicle rounded the corner, Officer Kooser observed the ppellant's Blazer, and Whittsette began to yell, Vice, go, go, get ut of here (T. 29). A man was observed leaning into the window f the Blazer; and the vehicle was parked away from the curb and lightly at an angle. As the police vehicle was arriving, about the ime Whittsette began to yell, Officer Kooser observed the appellant olding a brown paper bag which he had been showing to the person t the window of the Blazer. Officer Kooser observed the appellant ote the police had arrived, and go to the floor with the bag. (T. 0.) Based upon this testimony, the court was entitled to find that he officers had an articulable suspicion of criminal activity which as sufficient upon which to predicate an investigation. Since the ourt did not err in its findings, the appellant has failed to emonst rate the requisite prejudice necessary to a finding of neffective assistance of counsel. The appellant's second assignment of error pro se is overruled. The appellant's conviction is affirmed, but this case is eversed and remanded for a new sentencing hearing. It is ordered that appellee recover of appellant its costs erein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court irecting the Court of Common Pleas to carry this judgment into xecution. The defendant's conviction having been affirmed, any ail pending appeal is terminated. Case remanded to the trial court or resentencing. A certified copy of this entry shall constitute the mandate ursuant to Rule 27 of the Rules of Appellate Procedure. ATRICIA A. BLACKMON, J.,and, AMES M. PORTER, J., CONCUR. _________________________ JAMES D. SWEENEY CHIEF JUSTICE .B. This entry is an announcement of the court's decision. See pp.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will e journalized and will become the judgment and order of the ourt pursuant to App.R. 22(E) unless a motion for econsideration with supporting brief, per App.R. 26(A), is filed ithin ten (10) days of the announcement of the court's decision. he time period for review by the Supreme Court of Ohio shall egin to run upon the journalization of this court's announcement .