COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71092 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION DARRICK CEASOR : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT AUGUST 7, 1997 OF DECISION: CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM COURT OF COMMON PLEAS, CASE NO. CR-332828. JUDGMENT: AFFIRMED IN PART, REVERSED AND REMANDED IN PART. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: Stephanie Tubbs Jones Terry H. Gilbert, Esq. Cuyahoga County Prosecutor 1700 Standard Building Sherry F. McCreary Cleveland, Ohio 44113 Assistant County Prosecutor The Justice Center C. Randolph Keller, Esq. 1200 Ontario Street 1677 East 40th Street at Payne Cleveland, Ohio 44113 Cleveland, Ohio 44103 2 SWEENEY, JAMES D., C.J.: Defendant-appellant Darrick Ceasor appeals from his convictions for: 1) possession of cocaine equal to or exceeding one hundred times the bulk amount in violation of R.C. 2925.03(A)(9); 2) knowingly prepare for shipment, ship, transport, deliver, prepare for distribution or distributing cocaine, knowing or having reasonable cause to believe such drug was intended for sale or resale by himself or another in violation of R.C. 2925.03 (A)(2); 3) knowingly cultivate, manufacture or otherwise engage in any part of the production of cocaine in violation of R.C. 2925.03(A)(3); and 4) possession of criminal tools in violation of R.C. 2923.24. Counts one, two and three each contained one firearm specification. The appellant was sentenced on count one to a term of fifteen years to life imprisonment, with an additional three years incarceration for the gun specification, and fined the sum of $10,000; on count two, the appellant was sentenced to a term of two years incarceration, and fined $5,000; on count three the appellant was sentenced to a term of five to fifteen years incarceration, with an additional three years incarceration for the gun specification, and fined the sum of $5,000; on count four the appellant was sentenced to a term of one and one-half years incarceration, and fined $1,000. The court suspended the fine on count four. The court originally ordered each sentence to be served consecutively, but after a motion to reconsider, ordered that each of the cases should be served concurrently. On January 9, 1996, the Cleveland Police executed a search 3 warrant at 3244 West 32ndStreet, Cleveland, Ohio. Upon arrival at the scene, the word `police' was shouted prior to the officers' entry into the house. The appellant was found standing in the livingroom and raised his arms up as the police entered. During the search, in the basement crawlspace, the officers found two plastic bags containing large amounts of cocaine, and several smaller bags of cocaine which had already been processed. In an adjoining basement room the officers discovered a cooler containing equipment used in the manufacturing of crack cocaine, including an electric mixer, plates, large bowls, scraping knives, a table cloth, coffee pots, a pyrex glass measuring cup, an ice cream scoop, and a scale. Cocaine residue was found on these items. Also during the search the officers found a .22 caliber semi- automatic pistol under the cushion of a loveseat and a shotgun underneath some blankets which were lying on the floor in the livingroom. In one of the bedrooms upstairs the officers found clothes hanging in the closet; a mattress with sheets, on the floor; an alarm clock; and various other personal items such as photographs, razor, toothbrush, and a checkbook. The appellant's dogs were in the backyard of the home. The appellant was handcuffed and placed on the couch in the livingroom. A copy of the search warrant was placed in his lap. After reading the appellant his Constitutional rights, Detective Charles Escalante questioned the appellant. The officer elicited biographical information such as name, date of birth, and address. The appellant indicated that he resided at 9909 Lamontier, in 4 Cleveland, and that he was in the house because he was a subcontractor with Levy Construction. The appellant stated that Levy Construction owned the home, and that he owned the business. When Detective Escalante pointed out that if the business owned the house, and if he was owner of the business, then he, in fact, did own the house. The appellant then stated that he had a partner who owned the house. When Officer Escalante indicated that they found a gas bill in the appellant's name and that clothing was found upstairs, the appellant admitted that he lived in the home (T. 672). Detective Escalante informed the appellant that a large quantity of cocaine was found in the basement. The detective asked the appellant if anyone else was involved with him in the drug activity, and the appellant responded, The buck stops here. (T. 673). Next, Detective Escalante questioned the appellant regarding the guns which were found in the house. The appellant stated that, as to the shotgun, he obtained the blankets from the front lawn of a home at which there had been an eviction; he thought he would use the blankets for his dogs. He stated that he did not know there was a shotgun wrapped inside the blankets. From the next room, Lieutenant Gingell stated that the shotgun was not wrapped in the blankets, but rather was under the blankets. The appellant then stated, Okay, I lied. (T. 674.) When asked about the pistol, the appellant stated that the furniture was purchased through an advertisement in the newspaper, and he did not realize that the pistol was under the cushions. 5 Detective Escalante also testified that a `stash' house is a house in which large amounts of drugs are kept. It is a place where there is not much traffic in and out of the house, and it is a place that is quiet and unknown to the police. The best method of discovering a `stash' house is through the use of informants involved in drug activity (T. 642). The officer also testified that firearms are used in drug trafficking for protection of the stash, to prevent theft from other drug dealers, and for revenge. The information regarding this particular stash house was learned from an employee of ADT Security Systems. The prosecutor deemed the ADT installer a citizen informant. The record indicates that the appellant contacted ADT in order to have a security system installed in the home. During his inspection for installation, the installer found the drugs in the basement crawlspace. The informant removed a portion of the drugs and took it to a police officer in Berea, who in turn notified the Cleveland Police. A search warrant was issued based upon the information obtained by the Berea police officer. The court denied the appellant's repeated requests to have the informant testify. The appellant sets forth seven assignments of error. The first and second assignments of error will be considered together: THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A VERDICT OF GUILTY FOR THE OFFENSES CHARGED. THE APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In these assignments of error, the appellant argues that the 6 State presented only hazy circumstantial evidence of the appellant's connection to the drugs found in the house. The appellant asserts that the State's theories of his guilt were unsubstantiated, and that the only element proven by the State was the appellant's mere presence in the house at the time the drugs were discovered. In challenging the weight of the evidence, the appellant argues that the evidence adduced at trial was incredulous, conflicting, fragmented and unreliable. When the sufficiency of the State's evidence is challenged, the relevant inquiry 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 beyond a reasonable doubt. State v. Williams (1995), 73 Ohio St.3d 153 citing to Jackson v. Virginia (1979), 443 U.S. 307 and State v. Waddy (1992), 63 Ohio St.3d 430. The Supreme Court set forth the test for appellate review of the manifest weight of the evidence in State v. Jenks (1991), 61 Ohio St.3d 259, 273. A verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of fact. A reviewing court will not reverse a verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of the offense have been proven beyond a reasonable doubt. State v. Ely (1978), 56 Ohio St.2d 169; State v. DeHass (1967), 10 Ohio St.2d 230. The weight to be given evidence and the credibility of witnesses are primarily for the trier of fact to determine. Jenks, 7 supra. The Supreme Court has also held that Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Therefore, where the jury is properly and adequately instructed as to the standards for reasonable doubt a special instruction as to circumstantial evidence is not required. Jenks, supra, at syllabus one. In the case sub judice, the evidence presented at trial, although circumstantial, was sufficient to meet the tests set forth by the Supreme Court. If believed by the jury, the State's evidence shows that the appellant was present in the house at the time of police entry; that the appellant was residing in the house; that there were guns present in the house and that the appellant had knowledge of those guns; that, as a contractor, the appellant had reason to be in the basement and know the contents thereof; and that the appellant's testimony the buck stops here indicates that there were others involved with him in the drug trade. When viewing the evidence in a light most favorable to the prosecution, the appellant's conviction is supported by sufficient evidence and that reasonable minds could reach the same conclusion reached by the jury. The appellant's third assignment of error: 8 THE TRIAL COURT VIOLATED DEFENDANT-APPELLANT'S SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND THE RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, GUARANTEED UNDER THE UNITED STATES CONSTITUTION AND THE CONSTITUTION OF THE STATE OF OHIO, WHEN IT DENIED DEFENDANT-APPELLANT'S MOTION TO REVEAL THE IDENTITY OF THE CLEVELAND POLICE DEPARTMENT'S PURPORTED INFORMANT. The appellant argues that the ADT security person who discovered the drugs in the house was improperly considered an informant by the court when he should have been considered only as a witness whose identity must be disclosed. The appellant asserts that this failure to disclose this material witness left open the issues of how the contraband was discovered, transported, brought to the attention of the police, and the relationship between the drugs and the appellant. In the alternative, the appellant argues that the State was required to disclose the witness pursuant to Crim.R. 16(B)(1)(e). The Supreme Court in Williams, supra, reiterated the test for requiring the disclosure of an informant as set forth in the syllabus of State v. Williams (1983), 4 Ohio St.3d 74: The identity of an informant must be revealed to a criminal defendant when the testimony of the informant is vital to establishing and element of the crime or would be helpful or beneficial to the accused in preparing or making a defense to criminal charges. The Williams (1995) Court went on to cite Williams (1983), where it was held that, generally, 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 requiring disclosure of the informant's identity. Conversely, where disclosure would not be helpful or beneficial to the accused, the 9 identity of the informant need not be revealed. In the case now before this court, the appellant was not entitled to the disclosure of the informant pursuant to Crim.R. 16. This rule applies only to witnesses to be called by the State. The court permitted the prosecution to withdraw the informant from the list, and, thus Crim.R. 16 no longer applies. The trial court not only heard oral argument on the issue of disclosure of the informant's identity prior to the hearing on the motion to suppress, but it subsequently accepted a written motion from the appellant on the same issue. The appellant has failed to demonstrate that the informant would be able to testify as to any element necessary to establish the offenses for which the appellant was convicted. Additionally, in neither the oral nor the written motion was the appellant able to articulate for the court the way in which the informant's testimony would be helpful or beneficial to the accused in preparing or making a defense to the criminal charges brought against him. While it is true that the informant was the first to locate the drugs and bring them to the notice of law enforcement officials, the appellant was convicted upon the evidence adduced at trial: his presence in the house, his residence in the house; his knowledge, as a contractor in the home, of the contents of the basement; the guns in the house; and the appellant's statement to the police. When viewed in this light, testimony as to who and how the drugs were discovered becomes irrelevant. The appellant's third assignment of error is overruled. 10 The appellant's fourth assignment of error: THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON COMPLICITY WHERE THE STATE FAILED TO PROVE THE EXISTENCE OF A PRINCIPAL. The appellant argues that the court erred in instructing the jury on the issue of complicity when the prosecution had failed to prove that a principal committed the offense. R.C. 2923.03 states in pertinent part: (A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following: *** (2) Aid or abet another in committing the offense. In State v. Loudermill (1965), 2 Ohio St.2d 79, the court held The statutory commandments are clear. The evidence, as well as the law, governs the charge of the court in a criminal case (Section 2945.11, Revised Code), and the charge must be consistent with the evidence. When the evidence adduced at trial could reasonably be found to have proven the defendant guilty as an aider and abettor, a jury instruction by the court is warranted. State v. Perryman (1976), 49 Ohio St.2d 14, at syllabus five. In light of the entire record, the court's charge to the jury was proper. The State presented evidence that: 1) there were unaccounted fingerprints on the drug paraphernalia; 2) the appellant stated that the buck stops here ; and 3) Officer Escalante testified that the drug trade has various levels of participation, i.e, the grower, the importer, the high level trafficker who moves the drugs from the port cities to the interior of the U.S.; the local distributor; the street dealer (T. 643, 11 644). Based upon the foregoing, the trial court's decision to instruct the jury on complicity was factually justified by the evidence presented at trial. The appellant's fourth assignment of error is overruled. The fifth assignment of error: THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION FOR A MISTRIAL WHERE THE COURT ERRONEOUSLY INSTRUCTED THE JURY ON CONSPIRACY. The appellant argues the court erred when it failed to grant a motion for a mistrial based upon the court's charge to the jury on conspiracy instead of complicity. The appellant asserts that the court's attempt to give a curative instruction served only to confuse the jury and draw attention to the erroneous instruction. A trial court will not be reversed, absent an abuse of discretion, for failure to grant a mistrial. State v. Widner (1981), 68 Ohio St.2d 188; Cleveland v. Walters (1994), 98 Ohio App.3d 165; State v. Powers (1995), 106 Ohio App.3d 696. A mistrial should be declared where: 1) there is a manifest necessity to do so; 2) the trial judge had no reasonable alternative; and, 3) the public interest in fair trials designed to end in just judgments is best served by declaring the mistrial. Widner, supra. In addition, it must be noted that juries are presumed to obey the instructions given them by the court. State v. Zuern (1987), 32 Ohio St.3d 56; State v. Dunkins (1983), 10 Ohio App.3d 72; State v. Ferguson (1983), 5 Ohio St.3d 160. Here, the appellant's trial counsel pointed out the trial 12 court's error, and the court issued a curative instruction. The appellant can point to no evidence indicating that the jury failed to follow the court's curative instruction or that the jury was in any way confused. Absent an abuse of discretion, the curative instruction given by the court was adequate to avoid any confusion on the part of the jury. The appellant's fifth assignment of error is overruled. The appellant's sixth assignment of error: THE TRIAL COURT ERRED IN FAILING TO MERGE THE TWO GUN SPECIFICATIONS WHERE BOTH WERE CONNECTED TO OFFENSES ARISING FROM THE SAME TRANSACTION. The appellant and the appellee both agree that pursuant to R.C. 2929.71(B), the court erred in failing to merge the firearm specifications for purposes of sentencing the appellant. The trial court, recognizing that it had entered a void sentence, resentenced the appellant, but the order states only that all cases are to be served concurrently. Although the court attempted to correct its error, this court must still remand for resentencing. The appellant is required under R.C. 2929.71 to impose the term of incarceration for the firearm specification prior to and consecutively with the underlying sentences, and the court failed to specifically so state. The appellant's sixth assignment of error is well taken. The appellant's seventh assignment of error: THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT'S MOTION TO SUPPRESS DUE TO THE FACT THAT THE STATEMENT WAS TAKEN IN DIRECT VIOLATION OF HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO HAVE COUNSEL PRESENT 13 DURING A CUSTODIAL INTERROGATION AND THAT IT CONTAINED HIGHLY PREJUDICIAL EDITORIALIZATION FROM THE INTERROGATING OFFICER. The appellant argues that the court erred in failing to suppress his statement to the police after he requested counsel. The appellant also contends that the court erred in failing to suppress the editorial comments of the officer found in the statement. In State v. Jackson (Sept. 26, 1996), Cuyahoga App. No. 69433, unreported, this court held: A statement by the accused made in the course of a custodial interrogation is only admissible at trial upon proof by the state that the accused was advised of his constitutional rights to remain silent and have counsel present during the interrogation, and proof the accused knowingly, intelligently and voluntarily waived these rights. Miranda v. Arizona (1966), 384 U.S. 436, State v. Daily (1990), 53 Ohio St.3d 88. Appellant contends he did not knowingly and intelligently waive his right to counsel because the police continued to question appellant after appellant had requested an attorney. See Edwards v. Arizona (1981), 451 U.S. 477. Detective Seitz testified appellant never asked to speak to an attorney. Appellant testified he requested an attorney upon arrest, and during the interrogation. In reviewing a motion to suppress, the weight of evidence and credibility of witnesses is primarily for the trier of fact. State v. DePew (1988), 38 Ohio St.3d 275. (Alternate cites omitted.) The case sub judice presents a similar issue. The appellant contends that he requested an attorney. However, the testimony from Officer Escalante elicited at the suppression hearing indicates that the appellant was informed of his rights on three occasions, including the right to counsel; that he himself informed the appellant of his rights on the third occasion, including the right to counsel; that the appellant indicated he understood; that 14 he asked the appellant if he had an attorney and the appellant responded with the name of two attorneys; that the appellant did not, prior to this question, request an attorney; that after this point he ceased his questions to the appellant (T. 35 - 43). This evidence, if believed by the trier of fact, was sufficient to permit the denial of the motion to suppress. The court was entitled to believe the evidence presented at the suppression hearing that as soon as the appellant indicated the names of his counsel, the police ceased their questioning. Finally, while perhaps the court should have suppressed the editorial comments in the appellant's statement inserted by the police, given the evidence submitted at trial, any error was harmless beyond a reasonable doubt. The seventh assignment of error is overruled. Judgment affirmed as to the appellant's conviction, but case remanded for resentencing. 15 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 resentencing. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, J., and, JAMES M. PORTER, J.,, CONCUR. __________________________ JAMES D. SWEENEY CHIEF JUSTICE 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 .