COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72147 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : HECTOR OSORIO : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 22, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CP-CR.-341641 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PAUL MANCINO, JR., ESQ. CUYAHOGA COUNTY PROSECUTOR 75 Public Square, Suite 1016 BY: KESTRA SMITH CRUTCHER Cleveland, Ohio 44113-2098 ASSISTANT COUNTY PROSECUTOR 1200 Ontario Street Cleveland, Ohio 44113 -2- DYKE, P.J.: Defendant Hector Osorio appeals from his conviction for traf- ficking in less than the minimum bulk amount of cocaine and posses- sion of criminal tools. For the reasons set forth below, we affirm. On August 8, 1996, defendant was indicted for one count of trafficking in less than the bulk amount of cocaine and possession of criminal tools. Defendant pleaded not guilty and filed a motion to suppress evidence, alleging that he was subject to an unconsti- tutional search and seizure. The trial court held an evidentiary hearing on the motion to suppress on January 13, 1997. The state presented the testimony of Cleveland Police Detective Bernard Norman of the Vice Unit. Det. Norman testified that at approximately 9:15 p.m., on June 19, 1996, he was part of an undercover drug investigation in the area of 3141 West 31st Street. According to Det. Norman, the investigation was initiated following complaints from citizens that there were drug sales in this area. Norman's role was to observe the area for a short time then identify potential suspects. If he observed drug activity, the vice unit wouldsend an informant to be sent to the area to make a purchase, then arrest any individuals involved in drug sales. Det. Norman further testified that he observed the area for fifteen to twenty minutes. At this time, defendant was part of a groupof people who were standing around. They were approached by other various people who left after a short time, which Det. Norman believed was indicative that drug sales were taking place. He then -3- contacted his partner in the operation, Det. Dvorak. Det. Norman further indicated that earlier in the evening, he met with Det. Dvorak and the informant at the police station in order to outline the procedures to be employed. He further stated that in investigations of this nature, the informant and his vehicle are searched to determine that the informant does not have drugs or moneyin his possession. The informant is then given money, which has been photocopied and the serial numbers of wich have been pre- recorded, in order to obtain evidence of any drug transaction which may occur later. Det. Norman further testified that Det. Dvorak contacted the informant in this instance, performed the searches and gave him marked money. Det. Norman stated that at approximately 9:30 p.m., he watched from approximately three houses away in a police van while the informant approached the area of 3141 West 31st Street by car. According to Det. Norman, defendant was part of a group of people in this area and he approached the informant's car. Defendant took something from his mouth, handed it into the car and received something from the informant. The informant was searched following this incident and had a rock of cocaine and no longer had the money which the police officers had given him. Det. Norman continued to watch the group and described defendant's clothing to Det. Dvorak, then watched whileDvorak arrested him. At this time, the marked twenty dollar bill was recovered from defendant. -4- Det. Norman acknowledged that the informant left his sight afterthe purchase but he maintained that at all times, the infor- mant was either within the area monitored by Det. Norman or the area monitored by Det. Dvorak. Det. Norman further testified that Lois Luna was also arrested in connection with this investigation and that he threw a bag of marijuana to the ground as the officers approached. Defendant testified at the motion hearing and indicated that he was on the porch at his friend's house when the police arrived. Defendant stated that the police searched a group standing near the street, and as they searched Louis Luna, they found marijuana on the ground. After approximately fifteen minutes, the police approached defendant on the porch and found that he had a twenty dollar bill. According to defendant, he had received the money after a man stopped him and asked him for change. The trial court subsequently denied the motion to suppress and the matter proceeded to a jury trial on January 14, 1997. For its case, the state presented the testimony of Det. Norman, Det. Dvorak, Sgt. Heffernan, and Det. Santiago. Thesewitnesses established that Sgt. Heffernan was in charge of the investigation. Det. Dvorak arranged for a paid informant to meet the detectives at the Second District Police Station where they explained the procedure which they planned to employ. Det. Dvorak searched the informant and his car at the station to ensure that he had nothing of value or drugs, then gave the informant money which he had previously photocopied in order to track any transfer of -5- money. They then proceeded to the parking lot of a nearby store and Det. Dvorak again searched the informant and his car and again determined that the informant had nothing of value and no drugs. The detectives worked in several areas before proceeding to the area of West 31stStreet. This area, was, according to the state's witnesses, a hot spot or area where drug arrests had previously been made. Det. Norman was assigned to the surveillance of the area and drove his van approximately three houses past the target area and observed for roughly twenty minutes. At this time he observed people approaching and staying for a short time then leaving. He informed Det. Dvorak that there was possible drug activity and that the informant should be sent to the area. Det. Norman continued to observe from the position where he was stationed and watched as the informant drove to the area. The state's witnesses further established that they believe that it is essential that the police actually observe the transaction, and that in this particular instance, the informant had no opportunity to to go on a lark of his own. (Tr. 153). Usingbinoculars, Det. Norman observed defendant approach the informant, take something from the lip area of his mouth, and receive something from the informant in return. The informant drove away moments later. At all times, the informant was within the view of either Det. Norman or Det. Dvorak. That is, after leaving the area, the informant proceeded to the West 31stStreet and Mayer where he was later joined by Det. Dvorak and searched. The search indicated that the informant had one rock of -6- crack cocaine and no longer had the money which the officers had given him. The Scientific Investigative Unit analyzed the rock and determined that it weighed .15 grams. Det. Dvorak signed it out of that unit and brought it to court for the trial. (Tr. 160-162). Det. Norman continued to observe as the other detectives approached to arrest the suspects and he assisted them in appre- hending defendant by informing the officers of defendant's description by radio. Defendant walked toward a porch as the police arrived and was then arrested with two others. Defendant was found to be in possession of the money which had been photocopied and given to the informant at the police station earlier in the evening. He had no weapon, no drugs, and no other money in his possession and explained that he had received the twenty dollar bill from a man who asked for change for that bill. The detectives acknowledged, however, that they had been involved in drug arrests earlier in the evening and that one of them involved the same informant. In addition, they were not sure whether cocaine seized from a previous arrest was turned in to the police station immediately after that arrest or later at the end of the night. The defendant testified on his own behalf and indicated that prior to his arrest, he was visiting with his friend who lives on West 31st Street. They were inside his friend's house watching television, then later went to the outside porch where they were joined by others including Louis Luna and Jose Carreon. A man -7- subsequently approached the group and asked for change for a twenty dollar bill. Defendant had change and obliged the man. At this time, Luna was standing approximately ten feet away from defendant. The police subsequently arrived and searched Luna and Carreon. They then searched the yard while defendant watched from the porch. Defendant further testified that the detectives asked him if he lived there and he indicated that he did not. They then called for him to come over to them and searched him, and defendant volunteered that he had a twenty dollar bill in his sock. He specifically denied speaking to anyone in a car and denied selling crack cocaine. The matter was submitted to the jury and defendant was found guilty of both of the offenses with which he was charged. The court sentenced defendant to concurrent terms of one year incarceration on count one and six months incarceration on count two. He now appeals and assigns nine errors for our review. Defendant's first and second assignments of error are interrelated and state: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE STATE OVERRULED HIS MOTION TO SUPPRESS WHERE THE STATE FAILED TO PRODUCE THREE OF THE ARRESTING OFFICERS TO TESTIFY CONCERNING THE VALIDITY OF THE WARRANTLESS ARREST. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED THE MOTION TO SUPPRESS. Within these assignments of error, defendant complains that the trial court erred in failing to suppress the evidence introduced in connection with his arrest. -8- A warrantless arrest is a seizure within the meaning of the Fourth Amendment of the Constitution of the United States and cannot be effected unless supported by probable cause to believe that the seized individual is or has been engaged in criminal activity. Michigan v. Summers (1981), 452 U.S. 692, 700. Probable cause exists where the totality of the facts and circumstances within the arresting officer's knowledge are based on reasonably trustworthy information and are sufficient to warrant a prudent man to reasonably believe that an offense has been or is being committed. Beck v. Ohio (1964), 379 U.S. 89, 91. Probable cause is a flexible common sense standard, and requires only a showing that a proba- bility rather than an actual showing of criminal activity existed. Texas v. Brown (1983), 460 U.S. 730, 732. Illinois v. Gates (1983), 462 U.S. 213, 213. In this instance, the state's evidence with regard to the motion to suppress indicated that Det. Norman observed the area for approximately twenty minutes and determined that there was activity which was consistent with drug sales. He then contacted Det. Dvorak, who had dealt with the police informant earlier, and the informant went to this area. Det. Norman observed defendant approach the informant's vehicle, retrieve something from his mouth, and receive something in exchange from the informant. From this evidence, we concur with the trial court's determination that the police had probable cause to believe that defendant had been engaged in criminal activity. -9- Moreover, we do not believe that the trial court's determina- tion is undermined by the failure of the state to present the testi- mony of Det. Dvorak or the other officers during the suppression hearing as the totality of the facts and circumstances within the arresting officer's knowledge, including his understanding of Det. Dvorak's usual custom in searching the informant, his earlier meeting with Det. Dvorak and the informant to outline a plan for the evening, and his own observations of defendant approaching the informant, retrieving something from his mouth, and taking an item in return constitutes reasonably trustworthy information sufficient to warrant a prudent man to reasonably believe that an offense has been or is being committed. Beck v. Ohio, supra. That is, adhering to the rule that probable cause is a flexible common sense standard which requires only a showing that a probability rather than an actual showing of criminal activity existed, we conclude that the state was not required to prove defendant's guilt beyond a reasonable doubt at the suppression hearing. Finally, while defendant complains that he was arrested and searched while on private property, there is no showing that he has standing to complain about the search in relation to that property, cf. State v. Davis (1992), 80 Ohio App.3d 277, 284. Moreover, defendant testified that the police called him off the porch before searching him and arresting him (Tr. 260-261). In any event, in United States v. Santana (1976), 427 U.S. 38, 43, the Supreme Court of the United States determined that the defendant's act of retreating into her house as the police approached to arrest her for -10- a drug transaction in a public place could not thwart an otherwise proper arrest. The first and second assignments of error are overruled. Defendant's third assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW AND A FAIR TRIAL WHEN THE COURT DID NOT REQUIRE THE IDENTITY OF THE INFOR- MANT [TO] BE REVEALED. Defendant next complains that the trial court erred in refusing to order the arresting officers to state the identity of their informant. In Roviaro v. United States (1957), 353 U.S. 53, the Supreme Court refused to adopt a fixed rule regarding disclosure and instead noted that the question: [c]alls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible sig- nificance of the informer's testimony, and other relevant factors. Id., at 62. Moreover, the defendant bears the burden of establishing the need for disclosure. State v. Brown (1992), 64 Ohio St.3d 649, 653. That is, [t]he identity of an informant must be revealed to a criminal defendant when the testimony of the informant is vital to establishing an element of the crime or would be helpful or beneficial to the accused in preparing or making a defense to criminal charges. State v. Williams (1983), 4 Ohio St.3d 74, -11- syllabus; State v. Parsons (1989), 64 Ohio App.3d 63, 69. The Williams Court noted: In the case at bar, the testimony of Mr. K is in no way as critical as that of the informant in Phillips. Here, the transaction between appellee and the informant was witnessed, in its entirety, by a police officer in close proximity to the event. Moreover, the police officer testified that, at all times, Mr. K's hands were in plain sight so as to eliminate the possibility that Mr. K may have switched the packet given him by appellee for one containing cocaine. Thus, this is not a situation where proof of an element of the crime is dependent upon the testimony of the informant. It therefore cannot be said that this informant, without testifying, was actually a witness for the prosecution who was not subject to cross- examination. Additionally, appellee exercised his prerogative not to present a defense and his privilege not to take the stand on his own behalf. Even so, appellee suggests that the testimony of the informant would be relevant to this defense simply because the informant was the man who had been nearest to him and took part in the transaction. Appellee also contends that the informant's testimony may have been relevant to a defense of entrapment or mistaken identity. We note initially that Detectives Nagy, Copeland and Rospierski all positively identified appel- lee as the individual in the car with Mr. K when the drug transaction took place. Consequently, there is more than sufficient record evidence that appellee was the indivi- dual seated in the informant's care. With respect to the spectre of a possible entrapment defense, we are not in- clined to speculate on the relevance of the informant's testimony since the defense of entrapment was not raised at trial. For the foregoing reason, we hold that the identity of an informant must be revealed to a criminal defendant when the testimony of the informant is vital to establishing an element of the crime or would be helpful or beneficial to the accused in preparing or making a defense to cri- minal charges. However, the circumstances of this case do not warrant the disclosure of the identity of the informant who participated in the transaction which led to appellee's arrest and convictions. Accordingly, the judgment of the court of appeals is reversed and the convictions are reinstated. Id., at 76-77. -12- Finally, a trial court's decision concerning the disclosure of the identity of a confidential informant will not be reversed absent an abuse of discretion. See State v. Feltner (1993), 87 Ohio App.3d 279, 282. In this case, the trial court determined that the defense failed to justify disclosure of this information (Tr. 249-250). The record fully supports this conclusion. Indeed, in this instance, as in State v. Williams, supra, the transaction leading to defendant's arrest was observed by Det. Norman, who established that defendant approached the informant's car, took an item from his mouth and received something in return. Accordingly, we are unable to conclude that the trial court erred in sustaining the state's objection to disclosure in this instance. Accord State v. Adams (August 20, 1993), Lucas App. No. L-92-290, unreported. The third assignment of error is overruled. Defendant's fourth assignment of error states: DEFENDANT WAS DENIED A FAIR TRIAL WHEN THERE WERE REPEATED REFERENCES TO THE INFORMANT AS BEING A CONFI- DENTIAL RELIABLE INFORMANT. Within this assignment of error, defendant asserts that he was denied a fair trial as the result of repeated references to the informant as a confidential reliable informant. The record reveals that the state used this term, the defense objected, the trial court held a side bar conference and the term was not used when questioning resumed. The term was used later in -13- the trial, however, and the trial court sustained an objection raised by the defense and instructed the jury as follows: Ladies and gentlemen, the prosecutor is referring to this informant as a confidential reliable informant. I would like you to refer to this person as the informant. (Tr. 101-102). Later, one of the state's witnesses again referred to the informant as reliable and the court stated, in the presence of the jury, Strike the reliable. (Tr. 231). We therefore are unable to conclude that defendant was denied a fair trial by the use of this term. Accordingly, this assignment of error is overruled. Defendant's fifth assignment of error states: DEFENDANT WAS DENIED A FAIR TRIAL WHEN HE WAS IMPROPERLY CROSS-EXAMINED CONCERNING LOUIS LUNA AND HIS MARIJUANA MONEY. Herein, defendantasserts that he was deprived of a fair trial when the prosecuting attorney questioned him regarding marijuana and money in the possession of Louis Luna, who was also arrested on June 19, 1996. As an initial matter, we note that the state produced evidence that drugs are sometimes sold by a gang of people collectively, during which one person holds the drugs and one person holds the money (Tr. 130). In addition, the defense cross-examined Det. Norman as to the activity of Louis Luna and Hector Osorio, pre- sumably to raise reasonable doubt regarding defendant's culpability -14- for the crimes charged (Tr. 112, 189, 210) and/or the accuracy of the detectives' identification of defendant. (Tr. 217). Thus, this line of questioning was relevant in relation to the evidence of record introduced by both the state and the defense, and we therefore reject this assignment of error. Defendant's sixth assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT ALLOWED INTRODUCTION OF THE CONTROLLED SUBSTANCE WITHOUT A SHOWING OF CHAIN OF CUSTODY. Defendant next complains that the state failed to establish the chain of custody of the crack cocaine. To establish a chain of custody, the state need only show that it is reasonably certain that no substitutions, alterations, or tampering with the evidence occurred. State v. Moore (1973), 47 Ohio App.2d 181, 183; State v. Blevins (1987), 36 Ohio App.3d 147, 150. The chain of custody may be established through direct evidence as well as through inference. State v. Braxton (June 24, 1993), Cuyahoga App. No. 62842, unreported. Moreover, in State v. Braxton, supra, this court upheld introduction of narcotics where, as here, the drugs were taken to the Narcotics Unit Office and locked up before being transported to the SIU for testing by daytime personnel. In this instance, Det. Dvorak testified that he obtained the crackfrom the informant and gave it to Det. Norman at the station and it was then transported to SIU. In accordance with this court's holding in State v. Braxton, supra, we find that the state presented -15- reasonably certain evidence that no substitutions, alterations, or tampering of the evidence occurred, and we reject this assignment of error. Defendant's seventh assignment of error states: DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE PROSECUTOR IMPROPERLY REFERRED TO THE FACT THAT THE DEFENDANT DID NOT PRODUCE WITNESSES. Within this assignment of error, defendant challenges the prosecuting attorney's remarkin closing argument that defendant did not call Carreon or Luna to substantiate his version of the events preceding his arrest. The test to determine whether prosecutorial misconduct occurred is whether the prosecutor's remarks were improper and, if so, whether they substantially affected the rights of the accused. State v. Lott (1990), 51 Ohio St.3d 160, 165. We conclude that defendant has failed to meet the first prong of this test as the prosecutor is permitted to comment upon the failure of defendant to offerevidence to support his case. State v. Williams, (1986), 23 Ohio St.3d 16, 20; State v. Ferguson (1983), 5 Ohio St.3d 160, 163. In any event, the trial court instructed the jury that the arguments of counsel were not evidence. (Tr. 53-54, 321). The assigned error is overruled. Defendant's eighth assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION FOR JUDGMENT OF ACQUITTAL. -16- Defendant next asserts that the trial court should have entered a judgment of acquittal at the close of the state's evidence. In State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus, the Supreme Court held as follows: Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. In this instance, the state's evidence demonstrated that the informant and his vehicle were searched immediately prior to the arrest at issue and the informant had nothing of value and no drugs. Det. Norman then observed as defendant approached the informant's car, took something from his mouth, handed it to the informant, and received something from the informant. The state's evidence also demonstrated that the informant was continuously in the view of Det. Norman or Det. Dvorak and that after he left Det. Norman's view, Det. Dvorak determined that he had a rock of crack cocaine and no longer had the marked money which he was given at the police station. Thereafter, defendant was found in possession of this money. We believe that reasonable minds could reach different conclusions regarding the defendant's guilt and are therefore convinced that the trial court correctly denied defendant's motion for a judgment of acquittal. Defendant's eighth assignment of error is overruled. Defendant's ninth assignment of error states: -17- DEFENDANT IS ENTITLED TO A REVERSAL OF HIS CONVICTIONS AS THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE EVI- DENCE. For his final assignment of error, defendant challenges the weight of the evidence supporting the convictions. In State v. Thompkins (1997), 78 Ohio St.3d 380, 387, the Supreme Court set forth the role of an appellate court in deter- mining whether a judgment is against the manifest weight of the evidence: When a court of appeals reverses the judgment of a trial court on the basis that the verdict is against the manifest weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs [v. Florida (1982), 457 U.S. 31,] at 42, 102 S.Ct at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( The court, reviewing the entire record, weighs the evidence and all reasonable infer- ences, considers the credibility of witnesses and deter- mines 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. The discretionary powerto grant a new trial should only be granted in the exceptional case in which the evidence weighs heavily against the conviction. ) Moreover, the credibility of witnesses and the weight attributable to their testimony are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. Applying the foregoing, we note that informant was searched and given marked money prior to arriving at the area where defendant was socializing. The police observed defendant approach the informant's car, retrieve something from the lip area of his mouth, and receive an item in return. The informant was continuously in the view of -18- the police and was in possession of a rock of crack cocaine imme- diately afterward. Defendant admitted that he was in possession of the marked money. He also presented some evidence that he was merely sitting on his friend's porch and innocently came into possession of the money. Nonetheless, we cannot say that the jury lost its way or that it created a manifest miscarriage of justice in crediting the state's version of the events surrounding defendant's arrest and finding defendant guilty of the charged offenses. -19- 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. NAHRA, J., AND SPELLACY, J., CONCUR. ANN DYKE PRESIDING 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 .