COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71090 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ANTONIO CRUZ : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : JUNE 19, 1997 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 329054 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Richard A. Bell, Esq. Daniel Scully, Esq. Asst. County Prosecutor Asst. Public Defender 1200 Ontario Street 100 Lakeside place 8th Floor Justice Center 1200 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- ROCCO, J.: Appellant appeals his conviction following a bench trial wherein the trial judge found appellant guilty of obtaining, possessing or using heroin in violation of R.C. 2925.11. As the trial judge did not err by admitting the testimony of an expert who, although she did not perform the tests on the heroin, was present while the tests were being conducted and personally observed the test results, we affirm. On October 18, 1995, the Prosecutor for Cuyahoga County issued a single count information, charging appellant with having obtained, possessed, or used heroin in violation of R.C. 2925.11. The information also contained a furthermore clause alleging a prior conviction of Drug Trafficking in Case No. 203603, and a violence specification for a conviction on Aggravated Burglary in Case No. 059593. Appellant, in writing, waived his right to a Grand Jury indictment on November 1, 1995. On January 29, 1996, appellant appeared with retained counsel and waived his speedy trial rights for an indefinite period. On May 29, 1996, appellant waived his right to a jury trial, and a bench trial commenced. Appellant stipulated to the prior convictions in Case Nos. 203603 and 059593. At trial, the first witness to testify was Detective Bernard Norman. Det. Norman has been with the Cleveland Police Department for ten years, and has been a detective for seven years. He testified that, on August 12, 1995, he received a call at about 3:30 or 4:00 p.m. from a citizen who saw several males standing on -3- the corner of 30th and Walton selling heroin. Det. Norman knew there had been several drug arrests in that vicinity. He responded in an undercover van and began surveillance of the area. Det. Norman had observed thousands of drug sales in the past, and testified that generally, a customer would enter an area in a car or on foot, and would be approached by a seller who was standing on a corner. A short conversation would ensue, and a drug transaction would be made. Occasionally, a seller will not have the drugs with him, but will keep them hidden nearby, in a "stash" location. Det. Norman arrived in the area at approximately 4:00 p.m., and observed an individual, later identified as Correa, who was involved in an activity consistent with Det. Norman's general description of a drug sale. Det. Norman observed several transactions involving Correa, but continued to wait, as his view was partially blocked, and he was unable to see Correa's stash location. He wanted to see the stash location before he made an arrest. At about 4:45 p.m., appellant arrived. Det. Norman testified that he clearly saw appellant approach a car that had pulled into the area, talk to the driver for a short time, go to a grassy area at the curb where he removed something, and returned to the car. Det. Norman witnessed an exchange being made, and then appellant returned to the grassy area to put something there. Det. Norman then called a zone car that was in the area to make the arrest. -4- Det. Norman proceeded to park the undercover van around the corner, and returned to the location on foot. Appellant and Correa were already being held in the police car. Det. Norman retrieved two bags from the grassy area. At trial, Det. Norman identified appellant, and also identified the two bags that he had recovered that had been placed into a Scientific Investigation Unit envelope. Catherine Denissoff testified next. She has worked for the Cleveland Police Department in the forensic laboratory for fourteen years, where her duties have included narcotics analysis. She also identified the Scientific Investigation Unit envelope, which contained the two bags of a powdery substance that Det. Norman had recovered from the scene. Also included in the bag was the laboratory report, which included Ms. Denissoff's initials, as well as the initials of three of her colleagues who were also present when the substance was being analyzed. Ms. Denissoff testified that it was standard procedure to have more than one person confer on testing results. As part of the laboratory testing of the substance, the substance was first weighed. Ms. Denissoff testified that she did not weigh the substance herself, but watched her colleague, Kristine Blaney weigh the substance. The next test performed on the substance was a color test using three different chemical reagents. Ms. Blaney performed this test, although Ms. Denissoff was also present. The color changes achieved were consistent with color changes when an opiate derivative is tested. -5- Ms. Blaney also performed a microcrystalline test with a reagent known as mercuric iodide; this test is specific for heroin. Crystals formed, which Ms. Denissoff observed under a microscope. The crystals were identical to those formed when testing a known sample of heroin. The final test used on the substance was to run the powder on an instrument known as a gas chromatograph which produces a chart. Ms. Blaney injected the substance on the instrument. The chart that was produced matched that of a known heroin sample. Ms. Denissoff observed the chart that was produced. According to Ms. Denissoff, she knew that the results she observed were from the substance which Det. Norman had retrieved because the lab tests only one piece of evidence at a time. At the close of the state's case, appellant's counsel moved for a Crim.R. 29 acquittal; arguing that the state failed to make a prima facie case that the substance was, in fact, heroin. Counsel contended that Ms. Denissoff's testimony was insufficient as she merely observed the tests, but did not perform them. The court overruled appellant's motion. Appellant then testified, and stated that he was present in the area where Det. Norman had set up surveillance, but that he was not involved in any drug related transactions. Following appellant's testimony, the state moved to admit its exhibits into evidence. Exhibit No. 2 was the laboratory report documenting that the tests performed indicated that the substance recovered by Det. Norman was heroin. Appellant's counsel stipulated to the admission -6- of all of the exhibits. In his closing argument, appellant's counsel emphasized that Ms. Denissoff's testimony was hearsay, and that the state should have called to testify the individual who actually performed the tests on the substance in question. The trial judge found appellant guilty of drug abuse as charged under R.C. 2925.11 Appellant was sentenced to four to ten years of incarceration, with the mandatory $2,500 fine waived. Appellant timely filed his Notice of Appeal. ASSIGNMENT OF ERROR In his sole assignment of error, appellant asserts: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY RECEIVING INTO EVIDENCE EXPERT OPINION TESTIMONY WHICH WAS NOT BASED ON FACTS OR DATA PERCEIVED BY THAT EXPERT WITNESS OR ADMITTED INTO EVIDENCE, IN VIOLATION OF EVID.R. 602, 703, 705, 802 AND THE APPELLANT'S RIGHT TO CONFRONTATION AS GUARANTEED BY THE CONSTITUTION OF THE UNITED STATES AND OF OHIO. Appellant maintains the trial court erred when it admitted the testimony of Ms. Denissoff, as she did not actually perform the tests which identified the substance found by Det. Norman as heroin. Evid.R. 103 provides: (A) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific grounds was not apparent from the context; * * *. -7- Appellant does not deny that his trial counsel failed to object to the admission of Ms. Denissoff's testimony. Rather, he argues that his trial counsel could not have objected, as he was unaware that Ms. Denissoff had not personally performed the tests in question until he cross-examined her. Appellant maintains that, rather than objecting, his trial counsel "couched his objections in broader arguments for acquittal * * *." A review of the record reveals that appellant failed to timely object to the testimony of Ms. Denissoff. In his motion for acquittal pursuant to Crim.R. 29(A), appellant does allege the state failed to prove that the substance was heroin. However, he merely states: My argument is that the expert in here wasn't in a position to actually -- they have to bring in some of these other people that are initialed. They have to bring in some of these other people that actually took the test, Judge. I think the test is deficient because she didn't -- she saw the results, but she didn't perform the test. I think she didn't perform any of the tests. She saw them, but there are four people, they can bring them in, the ones that did the test -- these tests that add up to making it heroin. And I have a question of whether or not that proof is sufficient. (Emphasis added.) Then in his closing argument, appellant's trial counsel states: They've got to bring people in. What we're talking about is to have somebody testify about someone else's work. And what you've got is you got a hearsay problem here, and you can't do that. * * * I think it's just plain wrong, and I don't think they show that it's heroin as far as evidentiary, and as far as the testimony as to who did the test, and who's qualified to do the test. (Emphasis added.) As demonstrated above, the transcript indicates that trial counsel was not objecting to the basis of the witness' -8- testimony, but was instead arguing that the evidence presented by Ms. Denissoff was insufficient to prove that the substance in question was heroin. Furthermore, appellant also failed to move to strike Ms. Denissoff's testimony as provided in Evid.R. 103(A). Counsel could have easily moved to strike after his cross-examination when he learned the witness had observed, but had not actually performed the tests on the substance. His failure to do so further illustrates that appellant's trial counsel did not comply with Evid.R. 103(A). Assuming, arguendo, that appellant's trial counsel's arguments for acquittal sufficiently stated an objection to Ms. Denissoff's testimony, this court will address appellant's substantive argument. Appellant maintains that Ms. Denissoff's testimony is inadmissible pursuant to Evidence Rules 602, 703 and 705. Evid.R. 602 provides that: [a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses. Evid.R. 703, in turn, provides: [t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing. Finally, Evid.R. 705 provides: [t]he expert may testify in terms of opinion or inference and give his reasons therefor after disclosure of the -9- underlying facts or data. The disclosure may be in response to a hypothetical question or otherwise. Appellant argues that Ms. Denissoff's testimony is inadmissible as her testimony was based on test results when she did not personally perform the relevant tests. The court in State v. Solomon (1991), 59 Ohio St.3d 124 stated: * * * we find that where an expert bases his opinion, in whole or in major part, on facts or data perceived by him, the requirement of Evid.R. 703 has been satisfied. It is important to note that Evid.R. 703 is written in the disjunctive. Opinions may be based on perceptions or facts or data admitted in evidence. (Emphasis in original.) In State v. Eley (1996), 77 Ohio St.3d 174, an aggravated murder case, the coroner who testified at trial had not performed the actual autopsy, although he was present while the autopsy was being performed, and it was done at his direction. State v. Eley, supra at 181. Moreover, the testifying coroner admitted that he did not supervise the autopsy or tell the pathologist performing the autopsy what to do. Id. The testifying coroner also used the coroner's report to refresh his memory at trial, although that report was not admitted into evidence. Id. The appellant in Eley claimed that the coroner's testimony failed to meet the requirements of Evid. R. 703. The Eley court applied State v. Solomon, supra, and determined that the coroner was clearly qualified to testify as an expert as he observed the autopsy being performed. Id. Further, the testimony was based on his personal observations which were refreshed by the autopsy -10- report. Therefore, the court concluded that the expert's testimony complied with Evid.R. 703. Id. In the matter, sub judice, the record indicates that Ms. Denissoff observed the substance being weighed, viewed the results of the color test, looked at the crystals that were produced following the microcrystalline test, and observed the chart that was produced by the gas chromatograph test. Further, as the laboratory only tests one piece of evidence at a time, Ms. Denissoff knew that the results she observed were from the substance seized by Det. Norman. It is undisputed that Ms. 1 Denissoff herself did not perform any of these tests. However, there is sufficient evidence that Ms. Denissoff's testimony was based "in whole or in major part" on facts or data she observed. See State v. Eley, supra. Moreover, the report on which her testimony was based was admitted into evidence. Appellant argues that the laboratory report should not have been admitted into evidence as it does not comply with R.C. 2925.51. R.C. 2925.51 requires that the laboratory report contain the signature of the person who performed the test, and also a copy of a notarized statement by the individual who signed the report. There is neither a signature nor a notarized statement on the report. However, at trial, appellant's counsel failed to object to 1 This court recognizes that it is certainly preferable to call as a witness the individual who actually performed the tests on which the testimony is based. There is nothing in the record that explains why Ms. Blaney was not chosen to testify as to the tests she performed. -11- the state's motion to admit the report, and actually stipulated that it would be admitted as evidence. Thus, any objection to the admissibility of the report is now waived. As appellant failed to object to the report, the report will be admissible absent plain error. See Crim.R. 52(B). Plain error exists only when "but for the error, the outcome at trial would have been different." State v. Moreland (1990), 50 Ohio St.3d 58, 62 (citations omitted). The statute provides that the report, if it complies with the requirements, would be prima facie evidence of the content, identity and weight of the substance. As Ms. Denissoff's testimony identifies the substance in question to be heroin, there is no indication that the outcome at trial would have been different absent the report. There is no plain error, and appellant has waived any objection to the admissibility of the report. Ms. Denissoff's testimony is in compliance with the relevant rules of evidence. Appellant next argues that Ms. Denissoff's testimony is inadmissible as it constitutes hearsay, denying appellant his right of confrontation. It is appellant's position that Ms. Denissoff's testimony was based on hearsay as she did not have first hand knowledge that the substance was actually tested by her colleague, Ms. Blaney, but learned this only by reviewing the laboratory report. However, Ms. Denissoff testified that she was in the laboratory while all of the tests were being performed on the substance. The laboratory report merely served to refresh Ms. Denissoff's memory at trial. See State v. Eley, supra. -12- Appellant contends he was unable to confront Ms. Blaney, thus violating his right to confront witnesses as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Section 10 of the Ohio Constitution. However, Ms. Denissoff testified regarding the tests performed on the substance, the procedures used, and her personal observations of the test results. The witness was present in the laboratory during the entire time the substance was being tested. She observed the test results as part of the standard procedure employed to ensure that positive results were interpreted correctly. Appellant had a full opportunity to question the witness regarding the procedures that were performed and the interpretation of the test results. Appellant's right to confront the witness was not violated. Appellant's assignment of error is overruled. This matter is 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. JOSEPH J. NAHRA, P.J., AND JOHN T. PATTON, J., CONCUR. JUDGE KENNETH A. ROCCO 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 of decision by the .