COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71922 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION BRYAN JONES : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 24, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-339765 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor LISA REITZ WILLIAMSON Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: EDWARD J. GALASKA 930 Leader Building 526 Superior Avenue Cleveland, Ohio 44114 -2- O'DONNELL, J.: Bryan Jones appeals from a judgment of the common pleas court entered pursuant to a jury verdict finding him guilty of nine felony offenses arising from separate juvenile court complaints concerning incidents which occurred on April 10, May 24, and December 20, 1995. Jones here contests the convictions pertaining to the April 10 and December 20, 1995 arrests, challenging the denial of his motion to sever the matters for trial, denial of his motions to suppress evidence, admission of alleged hearsay testimony and a tape recording at trial, denial of a motion for acquittal, and further urging that the jury verdicts are against the manifest weight of the evidence. Following our thorough review of the record in this case, we conclude these assignments of error are without merit and affirm the judgment of the trial court. The first of the three incidents occurred on April 10, 1995, as Cleveland Police Officer Mark Shepard took a complaint from an anxious motorist about juveniles in a car who had threatened him with a gun; when the officer and the motorist spotted the vehicle, Shepard pursued it and apprehended the occupants. After placing Jones, the driver, in his squad car, Shepard removed Rachel Martino, Jones' girlfriend and the mother of his child, from the passenger seat of the vehicle and saw her drop a white package which appeared to be cocaine and kick it under the car. As a result, he arrested her for violating state drug laws. Officer James Simone, who responded to the scene and assisted in the arrest -3- of Martino, discovered $1,052.00 in cash in her purse, and questioned Martino, who stated that the drugs and most of the money belonged to Jones. When Jones saw her being arrested, he admitted to the officers that the drugs and money did belong to him. Shepard then also arrested Jones for drug abuse and possession of criminal tools. The second incident occurred on May 24, 1995, when police officers obtained a search warrant for a home located on West 47th Street. Prior to executing the warrant, they used a confidential reliable informant, who purchased crack cocaine from the premises. Following that purchase, as police continued to observe the house, they saw Jones leave in his car; they followed him, and they observed the passenger in the vehicle throw a package out the window, which they later discovered to be 6.45 grams of crack cocaine. Police stopped the vehicle and arrested the individuals inside. Upon searching the vehicle, they found crack cocaine on the floor of the driver's side beneath the seat and on the floor of the back seat. Police arrested Jones and charged him with aggravated trafficking, drug abuse, and possession of criminal tools. Jones does not contest his convictions of these charges on this appeal. The third incident occurred on December 20, 1995, when police received information that Jones expected a New York drug shipment to be delivered to the home of Edwin Diaz on Fulton Avenue in Cleveland, Ohio. They obtained search warrants for both the Jones and Diaz residences and began to conduct surveillance outside both -4- homes. Around 4:00 p.m. police spotted both Jones and Diaz in a vehicle several blocks away from Diaz's home, arrested Jones on an outstanding warrant, and then took him to Diaz's home, where the drugs were to be delivered and began to conduct their search. As the police conducted the search of Diaz's residence, Jones remained in the patrol car. In accordance with information they had attained earlier, a courier arrived carrying a brief case and a large gym bag. Jones gestured to him and yelled, Po po as a kind of warning, which caused him to turn and walk away. Police, however, arrested him, identified him as Jose Zamot, and discovered the gym bag contained 853 grams of crack cocaine. Zamot then admitted to police that he had agreed to deliver the drugs to Jones at the home in exchange for bus fare from New York and payment of $500.00. In connection with these events, police arrested Jones and charged him with two counts of aggravated trafficking, obstruction of justice, and possession of criminal tools. Following complaints filed on these three incidents in the Juvenile Court, the judge bound all three matters over to the General Division of the Common Pleas Court for Jones to be tried as an adult. The grand jury then returned a nine count indictment against him, involving all three incidents. Prior to trial, Jones moved for separate trials on each incident and filed a motion to suppress the evidence, and the court denied both motions. At trial the state presented evidence related to all three incidents, including testimony of officers involved in the arrests and a tape recorded telephone conversation between Jones and an informant. -5- At the close of the state's case, Jones made a Rule 29 motion for acquittal which the court denied. The defense presented no testimony. Following charge and deliberation, the jury returned guilty verdicts on all counts. Jones now appeals six of his convictions relating to the April 10 and December 20, 1995 arrests and presents eight assignments of error for our review, which we now consider. The first assignment of error states as follows: I. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE PROSECUTION WAS PERMITTED TO CONSOLIDATE THREE SEPARATE UNRELATED JUVENILE COURT CASES OCCURRING MONTHS APART FOR ONE TRIAL IN ORDER TO IMPROPERLY PREJUDICE THE DEFENDANT. Jones argues the court erred in denying his motion to sever because he alleges the jury was confused by the evidence and accumulated it by considering the evidence of possession on one occasion as collaborative of possession on any of the other occasions. The state contends the court did not err in denying the motion because Jones did not establish any prejudice as a result of the single trial. The issue for our review is whether the court erred in denying the motion to sever. Crim. R. 14 allows for separation upon a showing of prejudice by an accused. The Ohio Supreme Court set forth the appropriate burden in State v. Torres (1981), 66 Ohio St.2d 340, at syllabus: A defendant claiming error in the trial court's refusal to allow separate trials of multiple charges under Crim. -6- R. 14 has the burden of affirmatively showing that his rights were prejudiced. Evidence at trial related to separate incidents on three occasions resulting in charges of drug abuse and possession of criminal tools on April 10, 1995; charges of aggravated trafficking, drug abuse, and possession of criminal tools on May 24, 1995; and charges of aggravated trafficking, obstruction of justice, and possession of criminal tools on December 20, 1995. Although the charges are similar, the dates of the offenses are different, the possibility of jury confusion is remote, and nothing in the record suggests prejudice to Jones. Because Jones failed to establish prejudice, he failed to meet his burden of proof, and the court did not err in its denial of his motion to sever. Accordingly, this assignment of error is overruled. We will consider appellant's second and fifth assignments of error jointly as they relate to the same legal issue: II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN OVERRULING DEFENDANT'S MOTION TO SUPPRESS IN RELATION TO ALL EVIDENCE PERTAINING TO COUNT ONE AND TWO OF THE INDICTMENT. V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN OVERRULING DEFENDANT-APPELLANT'S MOTION TO SUPPRESS IN RELATION TO ALL EVIDENCE PERTAINING TO COUNTS SIX (6) THROUGH (9), INCLUSIVE, OF THE INDICTMENT. Jones argues the court erred in denying his motion to suppress all the evidence of the April 10, 1995 and the December 20, 1995 -7- incidents because on April 10, 1995, no probable cause existed for the traffic stop, and on December 20, 1995 the police acted outrageously and violated his due process rights. The state argues the court properly denied the motion to suppress because it presented credible evidence justifying the reasonableness of the April 10, 1995 police stop and arrest of appellant, and because appellant failed to prove any error regarding the December 20, 1995 arrest. The issue then presented for our review concerns whether the court erred by denying these motions to suppress. In a motion to suppress, the trial court assumes the role of fact finder, and is therefore in the best position to resolve questions of fact and evaluate witness credibility. State v. Smith (1991), 61 Ohio St.3d 284. A reviewing court must accept findings of fact when supported by competent, credible evidence; however, the question whether the facts meet the appropriate legal standard for admission is a question of law to be independently determined by the reviewing court. State v. Curry (1994), 95 Ohio App.3d 93, 96. In State v. Andrews (1991), 57 Ohio St.3d 86, 87, the Ohio Supreme Court reiterated the standard by which a police investigativestop and any evidence obtained therefrom is measured under the law of Terry v. Ohio (1968), 392 U.S.1: * * * a police officer may stop and investigate unusual behavior, even without probable cause to arrest, when he reasonably concludes that the individual is engaged in criminal activity. In assessing that conclusion, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from -8- those facts, reasonably warrant that intrusion. Furthermore, the standard against which the facts are judged must be an objective one: would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate? Furthermore, Crim. R. 52(B) provides Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. When constitutional rights are implicated, in order for error to be harmless, a reviewing court must find overwhelming evidence exclusive of the tainted materials and a finding of harmless error beyond a reasonable doubt. Chapman v. California (1967), 367 U.S. 18, 24. In this case, Officer Shepard, a nine year police veteran, testified that as he received a complaint from a motorist about juveniles in a car who pointed a gun at him, the motorist identified Jones' vehicle as the vehicle, which caused Shepard to stop it to further investigate the complaint. Shepard's testimony provides specific and articulable facts from which a trier of fact could rationally infer that Shepard reasonably believed appellant was engaged in criminal activity. Although Jones failed to request a hearing on the motion to suppress evidence in connection with the December 20, 1995 incident, this court may review that issue because it affects substantial rights. Our review of the record in this regard reveals that an informant testified and authenticated a tape recording made of a -9- telephone conversation in which Jones discussed plans to sell a shipment of drugs for Diaz, which he expected would arrive at Diaz's home on December 20, 1995. On December 20, 1995, police arrested Jones on an outstanding warrant and then drove him a short distance to Diaz's home, where they expected the drugs to be delivered. An officer testified that when he took Jones out of the car and he saw the drug courier, Jones warned him of the police presence by waiving his cuffed hands and yelling, Po po. Under the particular circumstances of this case, the actions of the police were not outrageous or unreasonable in transporting Jones to the Diaz home, and the reliability of the information is corroborated by the fact that a drug delivery did in fact take place at the Diaz home on December 20, 1995, as the informant had advised. Accordingly, we conclude the court did not err in denying the motion to suppress evidence gathered during either the April 10, 1995 or December 20, 1995 arrests, therefore these assignments of error are overruled. Appellant's third assignment of error states as follows: III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ADMITTING HEARSAY STATEMENTS THROUGH POLICE OFFICER TESTIMONY IMPLICATING THE DEFENDANT-APPELLANT ON COUNTS ONE (1) AND TWO (2) OF THE INDICTMENT. -10- Jones argues the court erred in permitting officers Shepard and Simone to testify that Rachel Martino told them the money and drugs found in her purse belonged to Jones because such testimony constituted inadmissible hearsay. The state argues not only that the statements explained why both Jones and Martino were arrested but also that they were not presented for the truth of the matter asserted, and therefore, they did not constitute hearsay. Furthermore, the state argues even if the statements were hearsay, the court committed harmless error, as Jones admitted the drugs belonged to him. The issue presented for our review is whether the officers' testimony constituted inadmissible hearsay, and if so, whether its admission resulted in prejudice to Jones. In State v. Thomas (1980), 61 Ohio St.2d 223, 232, the Ohio Supreme Court explained that police statements given for the purpose of explaining their conduct of an investigation do not constitute hearsay. Again, in order for error to be harmless when constitutional rights are involved, a court must find overwhelming evidence exclusive of the tainted materials and a finding of harmless error beyond a reasonable doubt. Chapman v. California (1967), 367 U.S. 18, 24. In this case, the testimony at issue related to the police officers' actions in conducting their investigation, therefore they do not constitute inadmissible hearsay. Furthermore, the admission of this testimony is harmless because Jones admitted after time that the drugs and money belonged to him. -11- Appellant's fourth assignment of error states: IV. THE COURT COMMITTED PREJUDICIAL ERROR WHEN IT PERMITTED POLICE OFFICERS TO TESTIFY, OVER DEFENSE COUNSEL'S OBJECTION, SPECULATING AS TO THE DRUG TRAFFICKING ACTIVITY OF THE DEFENDANT-APPELLANT. Jones contends the court erred in allowing Officers Shepard and Simone to testify about Jones' drug trafficking activity based upon the officers' experience with similar drug dealers. The state asserts the court did not err in admitting the officers' testimony, because they were qualified as experts on drug investigations. The issue for our review is whether the court erred in allowing the officers to give opinion testimony regarding Jones' drug trafficking activity. The qualification of an expert is a matter left to the discretion of a trial court and will not be set aside absent an abuse of that discretion. Schaffter v. Ward (1985) 17 Ohio St.3d 79, 80. Evid. R. 702 provides a witness may be qualified to give an opinion as an expert by knowledge, skill, experience, training, or education. Here, the record reflects Simone has worked as a Cleveland Police Officer for thirty-four years, and Shepard has been an officer for nine years. Together they have conducted several hundred drug related arrests. These officers were qualified to give opinion testimony as to Jones' drug trafficking activities. Therefore, appellant's fourth assignment of error is overruled. Appellant's sixth assignment of error states as follows: -12- VI. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND DEFENDANT-APPELLANT WAS DENIED DUE PROCESS OF THE LAW BY THE ADMISSION OF A TAPE RECORDED STATEMENT THAT THE PROSECUTION FAILED TO ESTABLISH WAS AUTHENTIC, ACCURATE, AND TRUSTWORTHY, AND WHICH CONTAINED NO REFERENCE TO THE CRIMES FOR WHICH THE DEFENDANT-APPELLANT WAS CHARGED BUT WHICH CONTAINED EVIDENCE OF OTHER CRIMES. Jones alleges the court erred in admitting a tape-recording of a telephone conversation between an informant and Jones detailing a planned drug delivery and subsequent distribution. Further, Jones argues that because the conversation details a conspiracy, a crime for which Jones was not indicted, it is inadmissible under Evid.R 404(B) as evidence of other crimes. The state argues that the court did not err in admitting the tape because Jones did not object, therefore, the objection is waived. The state further contends it properly authenticated the tape. The issue for our consideration is whether the court abused its discretion in admitting the tape into evidence. In State v. Sage (1987), 31 Ohio St.3d 173, the court stated in paragraph two of its syllabus: The admission or exclusion of relevant evidence rests within the sound discretion of the trial court. Evid.R. 901(B) provides a voice recording may be authenticated by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. -13- Evid.R. 404(B) provides evidence of other crimes is not admissible to prove the character of the accused in order to show action in conformity therewith. In this case, the record reflects that Jones objected to the admission of the tape at trial and also that the state authenticated it by presenting the informant who recognized and recorded Jones' voice using his answering machine. Furthermore, the fact the drug delivery detailed in the recording actually did take place the following day adds to the likelihood of authenticity. The content of the tape together with the informant's testimony provided evidence of Jones' drug trafficking activity as a principal offender, not merely as a coconspirator. Therefore, the court did not abuse its discretion by admitting the tape-recording into evidence. Jones' sixth assignment of error is overruled. We address appellant's seventh and eighth assignments of error jointly as they raise the same legal issues: VII. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED MOTIONS FOR JUDGMENT OF ACQUITTAL AS TO COUNTS TWO, SIX, SEVEN, AND NINE OF THE INDICTMENT. VIII. THE JURY'S VERDICTS AS TO COUNT TWO, SIX, SEVEN, AND NINE WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Jones argues that the court erred in denying his motion for acquittal regarding the crime of possession of criminal tools, to wit: the money, in connection with the April 10, 1995 arrest, and -14- regarding the crimes of aggravated trafficking and possession of criminal tools, to wit: the gym bag, in connection with the December 20, 1995 arrest. He claims the state never established his possession of any of these items, and also alleges his convictions were against the manifest weight of the evidence. The state argues that the court properly denied Jones' motion for acquittal because it proved all the elements of the crimes charged in connection with the April 10, 1995 and the December 20, 1995 arrests and that the convictions are supported by sufficient evidence. The issues for our resolution concern whether the court erred in denying Jones' motion for acquittal and whether these convictions are against the manifest weight of the evidence. The Ohio Supreme Court in State v. Jenks(1991), 61 Ohio St.3d 259, paragraph two of the syllabus set forth the standard of review for cases involving the sufficiency of evidence: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. 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 proven beyond a reasonable doubt. R.C. 2923.24 defines possession of criminal tools as the possession of any article with the purpose of using it criminally. The statute further provides that prima facie evidence of criminal purpose is established by possession or control of any article -15- commonly used for criminal purposes, under circumstances indicating it is intended for criminal use. Possession may be actual or constructive. State v. Mann (1993), 93 Ohio App.3d 301, 308; State v. Haynes (1971), 25 Ohio St.2d 264. Constructive possession may be proven by circumstantial evidence establishing defendant's proximity to readily usable drugs. State v. Barr (1993), 86 Ohio App.3d 227, 235. Furthermore, possession may be joint or individual. State v. Wolery (1976), 46 Ohio St.2d 316, cert. denied (1976), 429 U.S. 932. Ohio Criminal Jury Instruction 409.50 on joint possession provides, Two or more persons may have possession if together they have the ability to control it, exclusive of others. The Ohio Supreme court stated the appropriate standard of eview regarding manifest weight of the evidence question in State . Thompkins (1997), 780 Ohio St.3d 380, 387: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. In this case, regarding the charges on April 10, 1995, officers hepard and Simone testified that Jones admitted the money found in artino's purse belonged to him and that in their experience only eople involved in drug activity carry large sums of cash. In ddition, from evidence that Jones and Martino had a relationship, he jury could rationally conclude that Jones had the ability to irect and control the use of the money in her purse. Viewing this -16- vidence in a light most favorable to the state, a rational jury ould have found Jones guilty of possession of criminal tools on pril 10, 1995. Regarding the charges on December 20, 1995, the state stablished that Zamot, a New York courier, agreed to deliver drugs o Jones for $500, and, but for police intervention and Jones' arning to the courier, delivery of those drugs hidden in the gym ag would have been completed. Although Jones never physically eceived those drugs, the evidence established that by attempting o show Zamot that police had handcuffed him, and by yelling Po po s a warning to Zamot, thereby causing him to turn and walk away rom the intended delivery location, Jones exhibited his ability to xert control over the gym bag and its contents, and, therefore, he ointly possessedthose items with Zamot. Viewing this evidence in light most favorable to the state, we conclude the court did not rr in denying the motion to acquit on this basis. Accordingly, ones' seventh assignment of error is overruled. Regarding Jones' claim involving the manifest weight of the vidence, we recognize our obligation to review the entire record, eighthe evidence and all reasonable inferences, and consider the redibility of witnesses. After having conducted this review, we ote the state presented competent credible evidence sufficient to stablish each element of the charges of possession of criminal ools on April 19, 1995 and December 20, 1995, and aggravated rafficking on December 20, 1995, and established beyond a easonable doubt that Jones had constructive possession of the money -17- n Martino's purse and exercised control over the gym bag and its ontents. We further note that Jones neither presented testimony or offered evidence during the defense case in chief. Accordingly, e have concluded the jury did not create a manifest miscarriage of ustice in returning guilty verdicts in this case. Jones' eighth ssignment of error is therefore overruled. Judgment affirmed. -18- 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 Common Pleas Court 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 execution of sentence. A certified copy of this entry shall constitute the mandate ursuant to Rule 27 of the Rules of Appellate Procedure. LACKMON, P.J., and PELLACY, J., CONCUR JUDGE TERRENCE O'DONNELL .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 court ursuant to App.R. 22(E) unless a motion for reconsideration with upporting brief, per App.R. 26(A), is filed within ten (10) days f the announcement of the court's decision. The time period for eview by the Supreme Court of Ohio shall begin to run upon the .