COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72123 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : : OPINION JOHN MATTHEWS : : Defendant-Appellant : : : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 9, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-334219 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor SHERRY F. MCCREARY Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee: MYRON P. WATSON 310 Lakeside Avenue, N.W. 595 Courthouse Square Building Cleveland, Ohio 44113 -2- O'DONNELL, J.: John Matthews appeals from a judgment of the common pleas court entered pursuant to a jury verdict following a retrial which found him guilty of two counts of drug trafficking in connection with the use of his home for drug transactions in 1995 and 1996. He alleges denial of speedy trial, insufficiency of evidence, prosecutorialmisconduct, inability to cross-examine an informant, and judicial error in jury instructions. Having thoroughly reviewed the record, we conclude Matthews's assignments of error are without merit and therefore affirm his convictions. The case history reveals that in December, 1995, Detective James Mendolera, of the Garfield Heights Police Department, and Detective Al Henderson, of the Maple Heights Police Department, members of the Southeast Area Law Enforcement Narcotics Task Force, who visited Gregory Ward in the jail, learned that a man named John, living at 5600 Dalewood Avenue in Maple Heights near Maple Heights High School, permitted drug sellers to use his home for drug transactions in exchange for either drugs or money. After Ward agreed to cooperate with the officers and to participate in a controlled buy at the home, police arranged for his release from jail. On December 12, 1995, the detectives provided Ward with $55 in traceable currency, fitted him with an audio transmitter, and transported him to Matthews' home. When Ward entered the home, Matthews paged an individual named Dykes, who arrived shortly -3- thereafter and sold $50 worth of crack cocaine to Ward, who then paid Matthews $5 for arranging the transaction. When Dykes emerged, the detectives followed him to the Record Exchange located nearby, waited for him to exit the store, and arrested him on an outstanding warrant; at that time they confiscated a pager from him, containing Matthews' phone number followed by the number 50. Although Dykes did not have any of the marked currency on his person, detectives later located two of the marked $20 bills among currency receipts at the Record Exchange. Thereafter, on January 22, 1996, the detectives again sent Ward to Matthews' home to make another controlled purchase. This time, they gave Ward $60; Matthews again arranged for Dykes to come to his home, and Ward then purchased $50 worth of crack from him and gave $10 to Matthews for setting up the transaction. Matthews, however, used that $10 bill to purchase some crack cocaine from Dykes for himself. Following that incident, police arrested Matthews, and secured multiple indictments against him; the court conducted a jury trial on May 20, 1996, which resulted in a guilty verdict on one count of permitting drug abuse and a court dismissal and a hung jury on other charges. On January 7, 1997, the court retried Matthews on the hung jury counts, and this time the jury returned verdicts of guilty on two counts of drug trafficking from which Matthews now appeals. He presents six assignments of error for our review, the first of which states as follows: -4- I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO DISMISS CAUSE FOR VIOLATION OF APPELLANT'S SPEEDY TRIAL RIGHTS. Matthews argues the state denied him his constitutional and statutory rights to a speedy trial. The state argues first that R.C. 2945.71 does not apply to retrials, and that it did not deprive him of his constitutional right to speedy trial because Matthews caused most of the delay, and that the time of trial in this case satisfied the reasonableness standard. The issue then before us is whether the state denied Matthews his right to a speedy trial. We begin our review by examining R.C. 2945.71, which provides a person against whom a felony charge is pending must be brought to trial within 270 days from the date of arrest. The Ohio Supreme Court has stated, however, in State v. Fanning (1982), 1 Ohio St.3d 19, 21, that, R.C. 1945.71 is not applicable to retrials, and the standard to be applied, therefore, is basically reasonableness under federal and state constitutions. To determine whether trial delays are reasonable in a constitutional sense, the United States Supreme Court, in Barker v. Wingo(1972), 407 U.S. 514, 530-33, developed a balancing test, in which the conduct of both the prosecution and the defendant are weighed, by considering the following factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. To determine whether a defendant -5- suffered prejudice from delay, the Court specifically focused upon three concerns: oppressive pretrial incarceration, anxiety, and impairment of the defense. In Matthews' case, the court scheduled his retrial for June 20, 1996, but at that time, Matthews requested a continuance due to a conflict in his attorney's schedule. The court granted the continuance and rescheduled trial for August 12, 1996. At that time, Matthews filed a motion to proceed pro se, and the court permitted his counsel to withdraw, but reset trial for October 1, 1996. On October 2, 1996, the court conducted a pretrial where Matthews alleged concern regarding a possible conflict of interest between the judge and a proposed witness whom the judge had once represented. In response to this concern, the judge recused herself, and transferred the case to the presiding and administrative judge of the court; on October 24, 1996, Matthews filed a motion to dismiss all charges alleging denial of speedy trial, but the administrative judge of the court denied that request and on December 9, 1996, assigned the case to a new judge who scheduled trial on January 7, 1997. That trial resulted in the convictions which are the subject of this appeal. Applying the constitutional standards suggested in Barker, supra, we recognize the court commenced Matthews' retrial approximately seven months after the original hung-jury trial. Matthews himself contributed to the delay in his retrial by seeking continuances and failed to demonstrate any prejudice from the delay. After balancing these factors and weighing the actions of -6- the state and Matthews, we have concluded that no unreasonable delay occurred in retrial of this case. Accordingly, this assignment of error is overruled. Matthews' second and third assignments of error concern similar principles and state as follows: II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY DENYING APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT I DRUG TRAFFICKING PURSUANT TO RULE 29 OF THE OHIO RULES OF CRIMINAL PROCEDURE. -7- III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY DENYING THE APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL OF COUNT II DRUG TRAFFICKING PURSUANT TO RULE 29 OF OHIO CRIMINAL RULES OF PROCEDURE. Matthews contends the court erred in denying his motion for acquittal, because the state failed to establish he received any benefit from the sale of cocaine in his home. The state maintains that the court correctly denied the motion for acquittal because the state proved the essential elements of drug trafficking. The issue for our resolution, then, is whether the state presented evidence on all of the elements of drug trafficking to justify the court's denial of Matthews' motion for acquittal. Crim.R. 29(A) provides, in relevant part: * * * The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged * * * if the evidence is insufficient to sustain a conviction of such offense or offenses. The test for sufficiency of the evidence is found in State v. Martin (1983), 20 Ohio App.3d 172, 175: As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. -8- The court recognized this test in State v. Taylor (1997), 78 Ohio St.3d 15, 18, certiorari denied (1998), 118 S.Ct. 143, 143, where it stated: * * * the relevant inquiry is whether, after reviewing 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 * * *. With respect to Matthews' sufficiency challenge, the state assumed the burden to present evidence which, viewed in a light most favorable to the state, would be sufficient for the court to find, beyond a reasonable doubt, all the elements of drug trafficking, as provided in R.C. 2925.03: (A) No person shall knowingly do any of the following: (1) Sell or offer to sell a controlled substance in an amount less than the minimum bulk amount; * * * (C)(1) Where the offender has violated division A(1) of this section, aggravated trafficking is a felony of the third degree, except that aggravated trafficking is a felony of the second degree if any of the following apply: (a) The offender commits the offense on school premises, in a school building, or within one thousand feet of the boundaries of any school premises; The Ohio Supreme Court, in State v. Scott (1982), 69 Ohio St.2d 439, stated in its syllabus: A person can offer to sell a controlled substance in violation of R.C. 2925.03(A)(1) without transferring a controlled substance to the buyer. The court at 441 explained that the statute applies to anyone who serve[s] as a link in the chain of supply. -9- At trial, the state presented eyewitness testimony of Ward, who testified that on two separate occasions, Matthews arranged for Dykes to sell him cocaine in Matthews' home. Ward testified he purchased the cocaine from Dykes, with Matthews present, and each time he paid Matthews for arranging the transaction. Ward also testified that Matthews gave a marked $10 bill to Dykes to obtain additional drugs. The state also presented evidence that Dykes had the $10 bill on his person following his arrest, and that police recovered some marked currency from the Record Exchange, all of which corroborated Ward's testimony. Finally, the state presented testimony from Kenneth Tyrpak, an engineer, who established 5600 Dalewood Avenue to be 660 feet from the Maple Heights High School. Our review of the transcript, therefore, leads us to conclude that the trial court correctly denied Matthews' motion for acquittal in this case, because after viewing the evidence in a light most favorable to the state, any rational trier of fact could have found the state proved the essential elements of drug trafficking beyond a reasonable doubt. Accordingly, Matthews' second and third assignments of error are not well taken and are overruled. The fourth assignment of error reads: IV. THE TRIAL ERRED WHEN IT DENIED THE APPELLANT'S MOTION FOR A MISTRIAL WHEN THE PROSECUTOR MADE IMPROPER ARGUMENTS TO THE JURY. -10- Matthews argues the prosecutor's reference during closing argument to the interest of the neighborhood and the students at the nearby high school in closing down a crack house constituted prosecutorial misconduct, thereby depriving him of a fair trial. The state argues the prosecutor's statements did not rise to the level of reversible error because the statements refer to evidence in the record and are thus, not improper, and did not affect the outcome of the trial. The issue here concerns whether the prosecutor's comments during closing argument rose to the level of prosecutorial misconduct and denied Matthews a fair trial. Our review of a claim of prosecutorial misconduct is guided by the two prong test set out by the Ohio Supreme Court in State v. Smith (1984), 14 Ohio St.3d 13, 14: The test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected the substantial rights of the defendant. Furthermore, a prosecutor must avoid insinuations and assertions which are calculated to mislead the jury, and may not allude to matters which [are] not supported by admissible evidence. Id. Specifically here in final argument, the prosecutor referred to the community's interests in not having the poison 1000 feet from Maple Heights High School, the state's use of an informant, and the jurors' roles as representatives of the community. We recognize that a prosecutor may not urge jurors to convict a defendant in order to protect community values, preserve civil order, or deter future lawbreaking. United States v. Monaghan -11- (C.A.D.C. 1984), 741 F.2d 1434, 1441-42. In the case at bar, however, the prosecutor's statements dealt with the community interest in not having drug activity within 1000 feet of a school because the indictment contained a school specification and evidence had been presented on that issue; further, the prosecutor rebutted the final argument of defense counsel which had questioned the propriety of making a deal with an informant; and finally, the prosecutor alluded to the jurors' roles as members of the community, but not as a basis for conviction. Following our review of the record in this case, we conclude the prosecutor's comments did not mislead the jury and referred directly to matters contained in the evidence in the case; they did not prejudicially affect the substantial rights of the appellant. Because the comments in this case did not prejudicially affect the substantial rights of the defendant, any error is harmless. This assignment of error is therefore, overruled. The fifth assignment of error states: V. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT PREVENTED DEFENSE COUNSEL TO ASK QUESTIONS REGARDING THE CONFIDENTIAL INFORMANT'S APPREHENSION OF LENGTH OF INCARCERATION FOR PENDING CRIMINAL CHARGES. Matthews argues the court abused its discretion by precluding defense counsel from questioning the informant about the length of the sentence he could receive for the theft and forgery charges pending against him in order to test Ward's credibility. The state argues the court properly precluded this line of questioning because evidence regarding Ward's knowledge about the -12- length of his possible incarceration had no relevance to the issue of his motivation or bias. The issue, then, for our determination, concerns whether the court abused its discretion when it precluded questions regarding the length of incarceration faced by Ward on charges of theft and forgery. In State v. Lundgren (1995), 73 Ohio St.3d 474, 487, certiorari denied (1996), 116 S.Ct. 1276, 1276, where the trial court refused to permit a defendant to cross examine witnesses regarding their sentences and possible parole, the court noted that the scope of cross-examination rests in the sound discretion of the trial judge and held that no abuse of discretion had occurred because the defendant had an ample opportunity to demonstrate the witnesses' bias or prejudice. Id. In the instant case, the transcript reflects defense counsel cross examined Ward regarding his relationship with Matthews, his involvement with the police as a paid informant, the nature of the charges pending against him, his history of making controlled buys, his drug use, and his expectation that in exchange for his cooperation, he would be released from jail and given consideration in the cases pending against him. After a thorough review of this cross examination, we have concluded that defense counsel had a full opportunity to demonstrate any bias or prejudice on the part of Ward, and in accordance with State v. Lundgren, supra, the court did not abuse its discretion in disallowing the questions regarding length of any -13- potential sentence he might have received. Accordingly, we overrule this assignment of error. VI. THE TRIAL COURT ERRED BY DENYING THE APPELLANT'S REQUEST FOR SPECIFIC INSTRUCTIONS ON THE CREDIBILITY OF THE CONFIDENTIAL INFORMANT. Matthews argues the court erred in failing to give proposed cautionary jury instructions on the issue of the credibility of a confidential informant. The state argues that the court gave satisfactory jury instructions which included a cautionary instruction on the motivation of an informant to testify at trial. The issue before us, then, is whether the court erred in refusing to give the appellant's specifically requested jury instructions on the issue of the informant's credibility. We recognize that the court is required to charge the jury on all relevant questions of law provided the issues are raised by evidence at trial, and a failure to do so constitutes an error of law. See State v. McCarthy (1992), 65 Ohio St.3d 589, 593. In State v. Scott (1986), 26 Ohio St.3d 92, 101, the court commented that a trial court need not administer the requested charge in the exact language proposed, and the court may properly refuse to instruct on matters not applicable to the facts of the case. In cases utilizing informant testimony, the need for cautionary instructions concerning credibility depends on the individual circumstances of each case, particularly other evidence -14- presented at trial which corroborates the informant's testimony. See State v. Draughn (1992), 76 Ohio App.3d 664, 675. In this case, the defense requested two instructions relating to uncorroborated informant testimony. The trial court here declined to give these instructions, but instructed the jury to consider the motive of the informant in weighing his credibility. After reviewing the record in this case, including the evidence which corroborated Ward's testimony, i.e., the confiscation of some currency, independent observations of the officers involved, and the arrest of Dykes, we have concluded the court here did not err in refusing to give Matthews' proposed jury instructions regarding uncorroborated informant testimony because the court has no obligation to give a charge in the exact language requested by a party, and the court here properly refused to instruct the jury regarding an uncorroborated informant's testimony because Ward's testimony had been corroborated. Accordingly, Matthews' sixth assignment of error is overruled. Judgment affirmed. -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 execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES M. PORTER, P.J., and JAMES D. SWEENEY, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .