COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70946 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION EARL BENSON :: : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: JULY 3, 1997 CHARACTER OF PROCEEDINGS: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-336874 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ------------------- APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES CUYAHOGA COUNTY PROSECUTOR BY: KESTRA SMITH-CRUTCHER (#0044156) ASSISTANT PROSECUTING ATTY. THE JUSTICE CENTER 1200 Ontario street CLEVELAND,OHIO 44113 For Defendant-Appellant: MICHAEL TROY WATSON (#0029023) 1367 EAST SIXTH ST. - #400 CLEVELAND, OHIO 44114 SPELLACY, J.: 2 Defendant-appellant, Earl Benson ( appellant ), appeals his convictions of drug trafficking in violation of R.C. 2925.03, drug abuse in violation of R.C. 2925.11, and possessing criminal tools in violation of R.C. 2923.24. Appellant assigns the following errors for our review: I. THE TRIAL COURT ERRED IN FAILING TO GRANT THE MOTION OF THE PROSECUTOR, ACCEPTED BY THE DEFENDANT-APPELLANT TO HIS RIGHT TO PLEA BARGAIN HIS OFFENSE. THE TRIAL COURT ERRED IN DENYING THE PROSECUTION MOTION AUTHORIZED BY HER SUPERVISOR TO AMEND THE INDICTMENT OF DRUG TRAFFICKING IN VIOLATION OF R.C. 2925.11 [TO] A MISDEMEANOR OF THE FIRST DEGREE. II. THE TRIAL COURT ERRED IN AFFIRMING THE VERDICT OF THE JURY CONVICTING THE DEFENDANT-APPELLANT OF AGGRAVATED DRUG TRAFFICKING IN VIOLATION OF R.C. 2925.03 A FELONY OF THE THIRD DEGREE AS THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. III. THAT THE IDENTIFICATION OF THE DEFENDANT- APPELLANT UPON WHICH HIS CONVICTION WAS BASED WAS SO DEFECTIVE AS TO BE CONTRARY TO THE CONSTITUTIONAL RIGHTS OF THE DEFENDANT- APPELLANT INCLUDING BUT NOT LIMITED TO A FAILURE OF THE PROSECUTION TO PROVE THEIR CASE BEYOND A REASONABLE DOUBT. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. I. On March 27, 1996, appellant was issued a five-count indictment in Case No. CR-336874. Count I charged appellant with drug trafficking in violation of R.C. 2925.03, with a violence 3 specification; Count II charged appellant with drug abuse in violation of R.C. 2925.11; Count III charged appellant with drug abuse in violation of R.C. 2925.11; Count IV charged appellant with drug trafficking in violation of R.C. 2925.03 with a schoolyard specification and a juvenile specification; and Count V charged appellant with possessing criminal tools in violation of R.C. 2923.24. A jury trial was conducted from May 22, 1996, through June 2, 1996. On June 2, 1996, appellant was found not guilty on Count I, drug trafficking in violation of R.C. 2925.03 with a violence specification and, on Count II, drug abuse in violation of R.C. 2925.11. The jury, however, found appellant guilty on Count III, drug abuse in violation of R.C. 2925.11, Count IV, drug trafficking in violation of R.C. 2925.03 with a schoolyard specification and a violence specification; and Count V, possessing criminal tools in violation of R.C. 2923.24. The trial court sentenced appellant consecutively to two years on Count III; four to fifteen years on Count IV; and one and one-half years on Count V. (Journal Entry, June 11, 1996). II. During the summer of 1995, Detective Jamal Ansari of the City of Cleveland Police Department's Narcotics Unit was assigned to the Mayor's Summer Offensive Program. The Mayor's Summer Offensive Program is a program which targets a specific area for intensified 4 law enforcement. In particular, a specific police ward was targeted and Det. Ansari was assigned to investigate housing complaints in that area. In doing so, Det. Ansari set up controlled purchases of narcotics from targeted houses in order to obtain future search warrants or arrest warrants. On July 18, 1995, Det. Ansari went to the area of 3454 E. 98th St., Cleveland, Ohio, and through the use of a confidential reliable informant ( CRI ), proceeded to make a controlled drug purchase. Det. Ansari gave the CRI the purchase money and advised the CRI to approach the house. Subsequently, Det. Ansari parked his undercover car and observed the activity taking place at 3454 98th Street. Det. Ansari was approximately 75 feet away from the house, but testified at trial that, through the use of binoculars he had a clear view of the situation. As Det. Ansari observed the activity, he noticed a male, later identified as appellant herein, standing in the driveway. As the CRI approached the house, he met appellant, had a brief conversation with appellant and the two men exchanged something. Appellant went back to a window located on the side of the house and passed the currency, which the CRI had given him, through the window. Appellant, however, was not arrested at this time. On August 9, 1995, Det. Ansari, still working on the Mayor's Summer Offensive Program, decided to make another controlled purchase at 3454 E. 98th Street. At this time, Det. Ansari 5 instructed a group of officers to make an arrest after the controlled purchase had taken place. Det. Ansari used the same CRI as he had used on July 18, 1995. The CRI exited Det. Ansari's car and proceeded to 3454 E. 98th Street. As the CRI approached the driveway, he encountered appellant and had a brief conversation with appellant. At this time, several juvenile males came running off of the porch of the house. Appellant pointed to a male wearing a beige jacket and the CRI went to that person and made an exchange. Following the exchange, Det. Ansari contacted Sergeant Lewis, who was also acting as surveillance, to move in on the situation. Det. Ansari instructed Sgt. Lewis to arrest the male standing in the driveway because Det. Ansari recognized him as the individual who had made the previous exchange with the CRI on July 18, 1995. Subsequently, appellant was arrested, as well as three other juveniles. Eugenia Johnson-Whitt of the City of Cleveland Forensic Laboratory, whose duties include narcotics analysis, testified at trial, that the drugs obtained in both exchanges tested positive for crack cocaine. (Tr. 240). Testimony was also received that the money seized from the second controlled purchase was the marked money which Det. Ansari had given to the CRI to be used during the exchange. 6 At trial, Det. Ansari testified that there was no doubt in his mind that appellant was the individual he had observed both on July 18, 1995, and August 9, 1995. (Tr. 116). Appellant also testified at trial. Specifically, appellant testified that on July 18, 1995, he was working all day for Onzo's Roofing and was not at 3454 E. 98th Street. Although appellant admits having been at 3454 E. 98th Street on August 9, 1995, he denies selling drugs, having a conversation with the CRI, or making hand gestures toward the individual who eventually sold the CRI the cocaine. (Tr. 328, 337). III. Appellant, in his first assignment of error, contends that the trial court erred in refusing to accept his plea of guilty to the proposed amended indictment in Case No. CR-331085. Appellant, however, has only filed a notice of appeal in Case No. CR-336874. Therefore, this court is unable to address appellant's first assignment of error. IV. In his second assignment of error, appellant contends that the trial court erred in affirming the jury verdict convicting him of aggravated drug trafficking in violation of R.C. 2925.03, a felony of the third degree, as the conviction was against the manifest weight of the evidence. 7 In the present case, appellant was convicted by the jury on Count IV of the indictment, drug trafficking in violation of R.C. 2925.03 with a school yard specification and a juvenile specification. Appellant was then sentenced by the trial court to four to fifteen years on Count IV. The credibility of testimony and the weight of the evidence are primarily matters for the trier of fact. State v. Harriston (1989), 63 Ohio App.3d 58, 63. Where the record shows that a conviction is based on sufficient evidence, an appellate court may not reverse the verdict of the trier of fact. Id., citing State v. DeHass (1967), 10 Ohio St.2d 230. A reviewing court must be satisfied that there is sufficient evidence on all elements of the offense charged to satisfy reasonable minds of the guilt of the defendant. Sandoffsky v. State (1928), 29 Ohio App. 419. Furthermore, the trier of fact is free to believe all, part or none of the testimony of each witness. Harriston, supra; See also State v. Antill (1964), 176 Ohio St. 61. Therefore, we will not evaluate the credibility of witnesses or the relative weight of their testimony. DeHass, supra. In the case sub judice, the State presented evidence that the house and area where appellant was arrested had been targeted for intensified enforcement as part of the Mayor's Summer Offensive Program. The State presented evidence that 3454 E. 98th Street was the subject of various drug related housing complaints, that on 8 several different occasions drug sales had been observed in the area of 3454 E. 98thStreet, including the driveway of 3454 E. 98th Street, that the drug sale activity in the area was heavy, and that anywhere from sixteen to twenty people were doing business at 3454 E. 98th Street every day. Additionally, the State offered evidence that a confidential informant was observed approaching 3454 E. 98th Street where he made a controlled purchase from appellant on July 18, 1995. Evidence was also offered that the same informant was observed making a controlled purchase on August 9, 1995, at appellant's directive, from one of three male juveniles standing on the porch. Additional testimony was received that there was a school, St. Catherine's, located within one thousand feet of 3454 E. 98th Street. As the State offered sufficient evidence as to each of the essential elements of the crime charged, we find no merit to this assignment of error. Accordingly, appellant's second assignment is overruled. V. In his third assignment of error, appellant contends that Det. Ansari's identification of him through binoculars from seventy-five feet away was contrary to the standard required for proof beyond a reasonable doubt. In cases where identification of an individual becomes an issue, the United States Supreme Court in Manson v. Brathwaite 9 (1977), 432 U.S. 98, has stated that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations. Id. at 116; See Stovall v. Denno (1967), 388 U.S. 293. Factors to be considered when determining reliability include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Brathwaite, supra; See also Neil v. Biggers (1972), 409 U.S. 188. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Id. We now turn to the facts of this case and apply the above analysis. Det. Ansari testified that on several occasions he had the opportunity to observe a number of individuals conducting drug sales at 3454 E. 98th Street, and that on two specific occasions, he had the opportunity to observe appellant participate in the sale of drugs to the CRI. Although Det. Ansari was observing appellant from a distance of approximately seventy-five feet away and through binoculars, Det. Ansari testified that he had a clear view of appellant, that the weather was clear on July 18, 1995, and that the surveillance took place early in the evening when it was still light outside. Det. Ansari further testified that, on August 9, 10 1995, he recognized appellant as the same individual he had observed July 18, 1995, make the drug sale with the CRI. Det. Ansari was not a casual or passing observer, as is so often the case with witness identification. Det. Ansari was a trained police officer on duty when he conducted the surveillances of 3454 E. 98th Street. As a specially trained, assigned, and experienced officer, he could be expected to pay scrupulous attention to detail. Det. Ansari's ability to do so was supported up by the testimony of the arresting officers, as well as Det. Ansari's immediate supervisor. Det. Ansari's description of appellant to the arresting officers on August 9, 1995, was given within minutes after the transactions occurred and an arrest was made. Furthermore, Det. Ansari testified at trial that there was no doubt in his mind that the person he observed on July 18, 1995, and August 9, 1995, was appellant. These indicators of Det. Ansari's ability to make an accurate identification are hardly outweighed by the corrupting effect of the challenged identification itself. Further, all this assurance as to the reliability of the identification is hardly undermined by the fact that appellant was arrested at the very address where the sales had taken place, and that he acknowledged not only that he lived at that address at the time of the arrest, but that he was, in fact, home from work on August 9, 1995, the day of the arrest. 11 Surely, we cannot say that under all the circumstances of this case there is a very substantial likelihood of irreparable misidentification. Simmons v. United States (1968), 390 U.S. 377, 384. Short of that point, such evidence is for the jury to weigh. Brathwaite, supra at 116. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature. Id. Accordingly, appellant's third assignment of error is overruled. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. 12 PATRICIA BLACKMON, J. and TERRENCE O'DONNELL, 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 .