COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71975 STATE OF OHIO ) ) Plaintiff-Appellee ) JOURNAL ENTRY ) AND -VS- ) OPINION ) DARRELL V. WHITTAKER ) ) Defendant-Appellant ) Date of Announcement of Decision DECEMBER 11, 1997 Character of Proceeding Criminal appeal from Court of Common Pleas Case No. CR-337407 Judgment AFFIRMED Date of Journalization Appearances: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES JAMES A. DRAPER Cuyahoga County Prosecutor Cuy. County Public Defender LORI WHITE-LAISURE, Assistant DARIN THOMPSON, Assistant Prosecuting Attorney Public Defender 1200 Ontario Street 1200 West Third St., N.W. Cleveland, Ohio 44113 100 Lakeside Avenue Cleveland, Ohio 44113-1569 -2- JAMES M. PORTER, J.: Defendant-appellant Darrell V. Whittaker appeals from his conviction following a jury trial for unlawful possession of cocaine, less than the bulk amount (R.C. 2925.11) with a furthermore clause and violence specification. Defendant contends the trial court erred in admitting irrelevant and prejudicial evidence and in imposing the maximum sentence because defendant rejected a plea bargain and exercised his right to go to trial. We find no error and affirm. The State presented its case through the testimony of two CMHA police officers, William Likes and Eric Berkheimer, who investigated a report that a three month old baby had been left alone at the apartment of Sadie Walker in Cedar Estates. Shortly after 10:00 p.m. on January 15, 1996, the officers knocked on the apartment door. Both officers testified that they smelled marijuana when the door was opened, and that defendant Whittaker admitted to smoking one blunt. They testified that there were two other individuals in the living room. They asked to check on the baby, and defendant consented. They testified that defendant began backing up, or backpedaling, towards the bedroom in which the baby was resting, and placed his right hand in the front pocket of his pants. Both officers testified that defendant acted nervous and they became suspicious. They asked Whittaker to take his hand out of his pocket, but he kept his hand clenched into a fist. They saw saran wrap hanging out of his fist. They watched defendant put his hand under the baby. Officer Likes immediately searched under -3- the baby and found a cellophane bag containing two rocks of crack cocaine. They arrested defendant. The officers did not detain the other individuals in the apartment during these events, nor did they find any marijuana on the premises. The officers also testified regarding the condition of the apartment itself and the level of care the baby was receiving; that there was no baby food or diapers in the apartment; and that the baby's diaper was soiled and it was crying. Defendant testified on his own behalf. He stopped at Ms. Walker's apartment since he was dating her at the time. He gave her money with which to buy milk and stayed at the apartment to watch the baby while she went to the store. Chris Robertson, Ms. Walker's teenage brother, also came to the apartment while Whittaker was there, as did a homeless man whom Walker let sleep at her apartment. Because the baby was left in the defendant's care, he did not leave when the other people arrived. Defendant stated that when the officers arrived, they ordered everybody against the wall, including the other two individuals in the apartment. He stated that Robertson was in the bedroom with the baby when the officers arrived, but they ordered the juvenile out of the bedroom and into the living room. Whittaker further stated that Officer Berkheimer detained everybody in the living room, while his partner searched the apartment and found the bag containing the two rocks of crack cocaine. Whittaker denied that the drugs were his. -4- After the jury returned its verdict of guilty, a presentence investigation report was prepared. The sentencing hearing was held on December 12, 1996. After defendant and his counsel made statements, the court proceeded to state the reasons underlying the sentence to be imposed. Mr. Whittaker, first of all, this court knows that, A, you refused a plea bargain of a felony four. That is 6, 12, 18 months. And that you chose to go to trial. And you also chose to appear at trial in jail clothes. This court also notes that you are 32 years of age. You have been in treatment in Harbor Light. This court notes that your first offense was in 1986. You were convicted of criminal tools. 1988, drug abuse. You were sentenced to an Ohio State Reformatory, six months. Another violation of drug law, six months at LCI. In 1992 you were found guilty of possession of cocaine. You were given two years probation. However, you violated your probation at that time. The original sentence of 18 months was imposed. 10-13-93, burglary. And this was also in front of Judge Gaul. Now we have this case. The point obviously, this court finds that if you cannot stay away from drugs, we will have to put you someplace where drugs will stay away from you. Finds that you have not had drug treatment. And was placed on probation and you violated your probation, indicating you are not amenable to probation or community sanctions. It is the sentence of this court that the defendant, Darrell Whittaker, be incarcerated in LCI for a period of four to ten years, pay court costs. Mandatory fine will be waived on the filing of an affidavit of indigency. (Tr. at 284-85). This timely appeal followed. -5- We will address defendant's assignments of error in the order presented. I. ADMISSION OF IRRELEVANT AND UNFAIRLY PREJUDICIAL TESTIMONY DENIED MR. WHITTAKER HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. Defendant contends that the testimony from the officers about the lack of evidence of baby care (no baby food, diapers and a soiled baby) was irrelevant and prejudicial to the issues in the case. The State contends the evidence was relevant to whether or not defendant was present in the apartment for the purpose of watching after the baby. Evid.R. 401 defines relevant evidence as follows: Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Even if relevant, defendant argues that the probative value of the unkempt baby testimony was substantially outweighed by its prejudicial nature. Evid.R. 403(A) provides: "Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, or confusion of the issues, or of misleading the jury." The determination of the admission or exclusion of evidence is within the discretion of the trial court and will not be reversed without abuse of discretion. State v. Combs (1991), 62 Ohio St.3d 278, 284; Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271; State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of syllabus. Relevant evidence that is admissible is not limited to merely direct evidence establishing a claim or defense. Circumstantial -6- evidence as it relates to the probative value of other evidence in the case can also be of consequence to the action. State v. Moore (1988), 40 Ohio St.3d 63, 65. The baby evidence was all part of a continuous episode explaining why the officers went to the apartment and their conduct once inside. In the case at hand, the defendant informed the officers that he was at the apartment because he was watching the baby. The officers' testimony was that they saw the defendant remove drugs from his pocket and put them underneath the baby. Testimony that there was no baby food, no diapers, and that the baby's diaper was soiled goes to the truth and veracity of whether the defendant was, in fact, watching the baby. Although the evidence was at best marginally relevant, we find that the trial court did not abuse its discretion in admitting the evidence of an unkempt baby into the record. Also, although defense counsel objected to the question of whether there was any food in the apartment, no objections were made regarding questions whether there were diapers in the apartment and the condition of the child. An appellate court need not consider an error which a complaining party could have called to the trial court's attention at the time when such error could have been avoided or corrected by the trial court. State v. Williams (1977), 51 Ohio St.2d 112, paragraph one of syllabus; State v. Day (1991), 72 Ohio App.3d 82, 89. Furthermore, we fail to see that the evidence was materially prejudicial to the defendant. As defendant himself argues, it was patently absurd (Aplt's Reply Brf. at 2) for the State to argue -7- that a short-term babysitter had responsibility for obtaining baby food and diapers or for changing a soiled diaper. Assuming arguendo that it was error for the trial court to admit the baby evidence, we also find the evidence was harmless beyond a reasonable doubt since the record reveals the remaining evidence constitutes overwhelming evidence of defendant's guilt. In order to hold error harmless, the court must be able to declare a belief that the error was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18; State v. Lytle (1976), 48 Ohio St.2d 391. A reviewing court may overlook an error where the admissible evidence comprises "overwhelming" proof of a defendant's guilt. State v. Williams (1983), 6 Ohio St.3d 281, 290. When a claim of harmless error is raised, the appellate court must read the record and decide the probable impact of the error on the minds of the average jury. Harrington v. California (1974), 395 U.S. 250, 254. In Delaware v. Van Arsdall (1986), 475 U.S. 673, 681, the United States Supreme Court wrote: The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence, *** and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error. See, also, Jackson v. Howell (1993), 86 Ohio App.3d 497, 501; State v. Adams (1991), 74 Ohio App.3d 140, 145. In the instant case, after a review of the entire record, we find that any prejudice that may have resulted from the testimony -8- about the care of the baby constitutes harmless error. The officers testified that they saw defendant remove his fist from his pocket with a baggy hanging from it. They then saw defendant place his hand under the baby. The cocaine was immediately retrieved from under the baby. The overwhelming nature of this eyewitness testimony against defendant would easily establish that he was guilty as charged. State v. Simko (1994), 71 Ohio St.3d 483, 491. Assignment of Error I is overruled. II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED MR. WHITTAKER TO THE MAXIMUM TERM OF IMPRISONMENT ALLOWED BY LAW AS PUNISHMENT FOR EXERCISING HIS RIGHT TO TRIAL. R.C. 2929.12 states how the court should determine the minimum term of imprisonment for a felony in which an indefinite term should be imposed, as follows: (A) In determining the minimum term of imprisonment to be imposed for a felony for which an indefinite term of imprisonment is imposed, the court shall consider the risk that the offender will commit another crime and the need for protecting the public from the risk; the nature and circumstances of the offense; the victim impact statement prepared pursuant to section 2947.051 of the Revised Code, if a victim impact statement is required by that section; any statement by the victim pursuant to section 2930.14 of the Revised Code; and the history, character, and condition of the offender and his need for correctional or rehabilitative treatment. The trial court determined that there was a high risk that the defendant would commit another crime because he had several prior felonies dating from 1986 and was given an opportunity for probation and violated it. The court referred to the bad choices that defendant made: (1) he refused a favorable -9- plea bargain in favor of going to trial; (2) he voluntarily appeared at trial in jail clothes rather than street clothes; and (3) despite having been given probation for previous offenses, he violated it. Therefore, the court concluded, in the proper exercise of its discretion, that defendant was not a suitable candidate for probation. A trial court has broad discretion if the sentence imposed is within the statutory limits, as it was below. State v. Dultmeyer (1993), 85 Ohio App.3d 81, 83. The Ohio Supreme Court has held that a Court of Appeals cannot find that a trial court abused its discretion by imposing a severe sentence if the sentence is within the limits authorized by statute. Toledo v. Reasonover (1965), 5 Ohio St.2d 22, 24; State v. Polick (1995), 101 Ohio App.3d 428, 431. However, the trial court has a duty to consider the statutory aggravating and mitigating factors as set forth in R.C. 2929.13. State v. Flors (1987), 38 Ohio App.3d 133, 140. There is no evidence to show that the trial court did not consider the appropriate statutory guidelines. (R.C. 2929.12(C)). Although those factors must be considered, they clearly state they do not control the court's discretion to sentence within the limits of the law. We find no evidence that the trial court imposed a more severe sentence simply because the defendant failed to accept a favorable plea bargain. Although the trial court noted that defendant chose to proceed to trial instead of accepting a plea, this simply reflected, as did the other comments, on the defendant's poor judgment. The trial court also made comments -10- obviously indicating defendant was not a candidate for probation and maximum incarceration was necessary given his prior history of felonies and drug offenses dating from 1986. State v. Mitchell (Jan. 9, 1997), Cuyahoga App. No. 70121, unreported; State v. Paige (Dec. 22, 1994), Cuyahoga App. No. 66743, unreported. Assignment of Error II is overruled. Judgment affirmed. -11- 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 Court of Common Pleas 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. DAVID T. MATIA, P.J. and PATTON, J., CONCUR. JAMES M. PORTER JUDGE 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 .